Carl Bernofsky v. Tulane University

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1995 Lawsuit
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"A lie can travel halfway around the world while the truth is putting on its shoes."

-- Mark Twain

Ethical Conduct Complaint against Tulane's
Attorney, G. Phillip Shuler
My word is my bond.
I will never intentionally mislead the court or other counsel.
I will not knowingly make statements of fact or law that are untrue.

From:  Code of Professionalism, Louisiana State Bar Association


4000 S. Sherwood Forest Blvd., Suite 607
Baton Rouge, Louisiana  70816


Part A:  Information About Complainant

Dr. Carl Bernofsky
6478 General Diaz Street
New Orleans, Louisiana  70124
Tel: (504) 486-4639

Part B:  Information About Attorney

George Phillip Shuler, III, Esq. T.A. #12047
Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P.
2300 Energy Centre
1100 Poydras Street
New Orleans, Louisiana  70163
Tel: (504) 585-7000

Part C:  Explanation of Complaint

I.  Introduction

Complainant was plaintiff in a lawsuit designated as Dr. Carl Bernofsky v. Tulane University Medical School, filed January 31, 1995 in United States District Court for the Eastern District of Louisiana as Civil Action No. 95-358, alleging discrimination under 42 U.S.C. §1981 joined with various state law claims. The complaint asserted that plaintiff ("Bernofsky") was a professor at Tulane University Medical School ("Tulane") where he had been a faculty member for 20 years and that a new department chairman, who arrived in November, 1991 had harassed him, interfered with his staff, hindered his performance, caused him to lose grant funding, and threatened termination. The complaint further alleged that these actions were based on the fact that plaintiff was Jewish and that the other two senior Jewish faculty members in the department were also being discriminated against on the basis of their Jewish parentage by the same chairman, who was of Lebanese descent. Plaintiff's employment was terminated April 21, 1995.

A First Amended Complaint, adding an age discrimination claim under state law, was filed February 27, 1995. A trial date was initially set for January 22, 1996, but was continued to July 8, 1996 because of plaintiff's diagnosis and treatment for cancer. A Second Amended Complaint was filed on November 21, 1995, adding an ADEA claim and a claim for conversion of laboratory equipment and materials.

Defendant filed a Motion for Summary Judgment on May 14, 1996, and a Reply Memorandum on May 31, 1996. Plaintiff filed an Opposition Memorandum to Summary Judgment on May 21, 1996, and a Reply Memorandum Opposing Summary Judgment on June 5, 1996. In response to issues raised by the District Court, plaintiff filed a Supplemental Memorandum Opposing Summary Judgment on July 1, 1996, a Memorandum in Response to Court's Request, and a letter setting forth each of plaintiff's claims, also in response to the District Court's directive. Defendant delivered a Pretrial Memorandum on July 1, 1996, and plaintiff responded on July 2, 1996.

A status conference was held July 5, 1996, at which time the District Court informed plaintiff's counsel that defendant's motion for summary judgment would be denied and that the trial would commence as scheduled on July 8, 1996. However, as a result of defendant's complaints concerning the Exhibit Books assembled by plaintiff, the parties agreed to continue the trial to the next available date which, after a series of scheduling conflicts, was set for September 8, 1997. Although this trial date was reconfirmed as late as April 2, 1997, the District Court reversed itself, granting summary judgment in favor of defendant April 15, 1997 and rendering final judgment April 21, 1997.

Plaintiff timely appealed to the U.S. Court of Appeals for the Fifth Circuit as Case No. 97-30575, citing numerous issues of material fact that were in dispute with respect to his claims. Oral arguments were held January 6, 1998 in front of Judges Politz, DeMoss and Higginbotham, with attorney G. Phillip Shuler appearing for the defendant. The Appellate Court, in an unpublished opinion, affirmed the District Court for "substantially" the same reasons January 8, 1998 (Exhibit 1) and subsequently denied appellant's motion for a rehearing February 5, 1998.

II.  Complaint Against Attorney Shuler

At oral argument, attorney Shuler willfully mislead the court with three outrageous falsehoods, two of which (items B and C, below) had not been previously raised. Attorney Shuler's assertions were wholly inconsistent with all known documentary evidence and appear to have been fabricated for the purpose of diverting attention of the court from the issues that had been examined in the briefs submitted by the parties. The misrepresentations concerned highly contested issues of material fact that more properly should have been examined at a trial on the merits. The appellate court, giving credence to these falsehoods, was swayed in favor of the defendant.

A.  Attorney Shuler's first material misrepresentation to the court concerns Bernofsky's grant status at the time he was dismissed. Despite the record of grant support documented by Bernofsky's deposition testimony, curriculum vitae (Exhibit 2), the testimony of an economics expert, and numerous Tulane records, attorney Shuler falsely led the court to believe that Bernofsky had no grant support at the time of his termination.

Ten weeks before Bernofsky's dismissal on April 21, 1995, Tulane was notified that he would be receiving a new $250,000 research grant from the Air Force Office of Scientific Research. As a result of this notification, Tulane's Office of Public Relations dispatched a reporter and a photographer to interview Bernofsky and photograph him in front of his recently-acquired EPR spectrometer, which was funded by a previous $250,000 grant to Bernofsky. The story appeared on the front page of the March, 1995 issue of Monitor, the then current newsletter of Tulane University Medical Center (Exhibit 3). Attorney Shuler had access to all of this information, which was part of the case record.

Nevertheless, attorney Shuler falsely asserted that Bernofsky had no grant support at the time of his termination.


How much of the total dollar amount of grants would he have to obtain to support his salary allocation?


Well, at the time of his termination, he had none.  In 1993/94, he had zero.  In 94/95, he had zero.


He had no grants at all?


No grants at all. ...  (Appellate transcript, pp. 29-30; Exhibit 4).

B.  The second falsified claim concerned a course taught by plaintiff. According to Bernofsky's deposition testimony, curriculum vitae, the Tulane Catalog (Exhibit 5), and letters from his department chairman (such as Exhibit 6), Bernofsky taught an advanced graduate course in biochemistry for 16 years. Only the year he moved to Tulane and on two other occasions, when the course was canceled by the program director because of inadequate enrollment, did he not participate in the teaching program. Although teaching was not a requirement of his position, Bernofsky never refused a teaching assignment and was regularly invited to lecture in areas of his research specialization.

Starting in 1992, Bernofsky began asking his new department chairman to submit his credentials to the Personnel and Honors Committee so that he may be considered for the tenure he had been repeatedly promised for many years. The new chairman responded to this request by declaring that Bernofsky already had "de facto" tenure because of the many years that his "special" appointment had been renewed by Tulane. Finally, in 1994, Bernofsky offered to continue teaching with the provision that his chairman submit his credentials for review by the Personnel and Honors Committee. Neither the chairman nor any other Tulane administrator ever advised Bernofsky that his employment would be terminated unless he agreed unconditionally to continue teaching. In fact, Mr. John Beal, Tulane's Associate General Counsel, admitted in a letter written February 21, 1997 that, "His dismissal was not based upon any performance issues, but was strictly a financial decision. . . ."

Nevertheless, during oral argument - which was the first time this claim had ever been made - attorney Shuler falsely implied that Bernofsky would not have been terminated if only he had agreed to continue teaching.


. . . He might still be there today if he had said that he would.  But, he refused.  (Appellate transcript, p. 33; Exhibit 7).

C.  The third material falsehood pertained to the record of Dr. Jen-sie Tou ("Tou"), whose employment status was critical to the plaintiff's case for discrimination. The issue concerned the eligibility of these similarly-situated research professors for tenure and hinged on when and whether these employees had "special" (ie. non-tenure track) or "regular" (ie., tenure track) appointments.

All documentary evidence relating to Tou's appointments is summarized in Exhibit 8, which is based on Tou's deposition testimony, her curriculum vitae, annual Faculty Personnel Action Forms (such as Exhibit 9), personnel records (such as Exhibit 10), letters of appointment (such as Exhibit 11), and Minutes of the Personnel and Honors Committee (such as Exhibit 12).

In brief, the record demonstrated undisputedly that, for a period of 18 years starting from her first faculty appointment in 1971, Tou had "special" appointments except for a single year, during 1979-1980, when she was converted to a "regular" tenure-track position. During that brief interval, she was denied tenure twice by the Personnel and Honors Committee because of inadequate academic credentials and was returned to a "special" appointment (see Exhibit 11). Nevertheless, Tou was granted automatic tenure administratively in 1989 because of the length of time she held a "special" appointment (see Exhibit 13). All of these facts and documents were known to attorney Shuler at the time the case was argued in appellate court.

Nevertheless, at oral argument, attorney Shuler falsely asserted that Tou was hired on tenure track and had been on tenure track for seven years prior to receiving tenure. This was the first time this claim had ever been made.


What about the other person who did switch over?


Dr. Tou, that's correct. Dr. Tau -- she calls her Tou. I call her Tou. But, it's Jen-sie Tou. And, she started out at Tulane in 1972 and was tenure track for seven years, but during that time, she got a very prestigious grant that precluded her teaching. Teaching, service, scholarship being important to tenure precluded her --


Let me ask you this:  She came in as a tenure track?


She came in as tenure track.  Then, she got this grant which said you can only teach five percent (5%) of the time. So, they moved her over to be a research professor, a non-tenure track person like him, also.  But then, later, they looked at her again when she was again teaching extensively and said she had been research track. We're going to give her credit for that, and we're going to convert her, okay. They also had, obviously, good reason to do that, because Dr. Tou was making important contributions to the department and had been tenure track at one time.  (Appellate transcript, pp. 33-34; Exhibit 14).

III.  Argument

The Code of Professionalism of the Louisiana State Bar Association states, in pertinent part:

"I will never intentionally mislead the court or other counsel.  I will not knowingly make statements of fact or law that are untrue."

Attorney Shuler, by knowingly planting false evidence in the minds of the appellate judges, demonstrated a willful and egregious disregard for the code of professional conduct to which he is bound by oath.  Such conduct impedes the course of justice, degrades the court and the legal profession, and damages public trust in the institution of the judiciary.

IV.  Conclusion

As a consequence of the offences described above, the complainant respectfully requests that attorney Shuler be reprimanded and permanently barred from representing Tulane University in any and all proceedings that may take place in any Louisiana State Court, any U.S. District Court in the state of Louisiana, in the U.S. Court of Appeals for the Fifth Circuit, and in the U.S. Supreme Court. In addition, the Board may wish to impose whatever other disciplinary action it deems appropriate to the misconduct of attorney Shuler.

V.  List of Attached Exhibits

  1. Opinion, United States Court of Appeals for the Fifth Circuit; affirming the District Court's Order and Reasons of April 15, 1997; filed January 8, 1998.

  2. Curriculum Vitae, Carl Bernofsky; from the end of the 1994-1995 academic year and his last annual contract with Tulane, p. 9; listing Bernofsky's most recent grants prior to his termination on April 21, 1995.

  3. "Radical Research," Monitor, Vol. 2, No. 7, March, 1995, p. 1, by Judith Zwolak, editor, Tulane University Medical Center News; describing Bernofsky's new Air Force Grant.

  4. Appellate transcript, January 6, 1998, p. 29, line 22 to p. 30, line 8.

  5. Tulane Graduate School Catalog, 1990-92, p. 69; showing course taught by Bernofsky, "Energy Transduction Processes," Biochemistry 706.

  6. Letter from Rune L. Stjernholm to Blackwell Evans, Acting Dean, dated April 14, 1989; praising Bernofsky's teaching and recommending him for tenure.

  7. Appellate transcript, January 6, 1998, p. 33, lines 10 and 11.

  8. Derived "timeline" for Dr. Jen-sie Tou; showing her university employment status from 1971 through 1997.

  9. Faculty Personnel Action Form for Jen-sie Tou; showing her "special" (ie. non-tenured) appointment for the 1985-1986 academic year. These forms were issued annually.

  10. Administrative notes from Jen-sie Tou's personnel file. The last entry (undated) is apparently from 1989, just prior to her grant of automatic tenure following 18 years of predominantly "special" appointments. Dr. "E" is identified as Dr. Blackwell Evans, Acting Dean; "A" is Adrienne Engelhardt, the Dean's administrative assistant; and "vote" refers to an action to be taken by the Personnel and Honors Committee ("P & H") regarding Tou's appointment.

  11. Appointment letter from Dean James Hamlin to Jen-sie Tou, dated June 19, 1980; confirming that her status has been changed back to a "special" appointment. This follows Tou's second unsuccessful attempt to achieve tenured status through evaluation of her academic credentials by the Personnel and Honors Committee (See entry of 7/1/80, Exhibit 10). Tou's first attempt was a year earlier, at the time she first received a "regular" appointment (See entry of 7/1/79, Exhibit 10).

  12. Minutes of the Personnel and Honors Committee Meeting, dated June 25, 1980, as reported at the Executive Faculty Meeting, dated June 26, 1980; denying Tou's second request for tenure. Page 2 shows that the motion to return Tou to Research Associate (ie., "special") status was carried.

  13. Letter from Chancellor John Walsh to President Eamon Kelly, dated March 16, 1989; recommending tenure for Tou even though she held a "special" appointment and that administrative maneuvers on her behalf violated critical university precepts. Walsh was apparently unaware that, during Tou's brief period of "regular" status, she had been denied tenure twice, which explained her conversion back to "special" status.

  14. Appellate transcript, January 6, 1998, p. 33, line 18 to p. 34, line 21.

VI. Certifications

I certify that I alone am responsible for the preparation of the above complaint against attorney G. Phillip Shuler and further declare that, to the best of my knowledge, the statements in the complaint are true.

I also certify that a copy of the above and foregoing has this day been forwarded to attorney G. Phillip Shuler and my present counsel by depositing same in the United States mail, properly addressed, and first class postage prepaid.

New Orleans, Louisiana, this   23rd   day of January, 2001.

s/     Carl Bernofsky       
  Carl Bernofsky
s/     Debra L. Cassibry       

Response of the Louisiana Attorney Disciplinary Board

The Board was quick to dismiss Bernofsky's complaint against attorney Shuler, arguing that Shuler's misrepresentations were of no consequence because the judges had access to the evidence in the record [1].

"To the extent that the representations of Mr. Shuler to the Fifth U.S. Circuit Court of Appeal during oral argument were contradicted in a material way by the evidence in the record, the court would not have been persuaded by representations of counsel . . ."

The Board also questioned Bernofsky's evidence:

"The Office of Disciplinary Counsel is not in a position to research and make factual determinations of the accuracy of your position nor that of Tulane University. . . . [T]here could never be a finding by this office of clear and convincing evidence since it would require this office to make the initial determination of which you represented the accurate facts within the context of your litigation."

The Board did concede, however, that Bernofsky may be justified in continuing to press for a trial of his discrimination case:

"To the extent that you believe that you have strong evidence to demonstrate the position taken by Tulane University during oral argument was inappropriate, you may wish to consult with an attorney of your own choosing to decide whether or not a motion for a new trial on the basis of fraud and ill practice may be appropriate."
  1. Letter of February 5, 2001 to Carl Bernofsky from Charles B. Plattsmier, Chief Disciplinary Counsel, Louisiana Attorney Disciplinary Board (Case No. 2001-ADMIN-69).


According to Title 18, United States Code, Section 1001(a) [PDF], it a crime to knowingly and willfully make any materially false, fictitious or fraudulent statement or representation in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.

However, “Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.”

Thus, parties to a judicial proceeding are exempt from the provision of subsection (a) and can knowingly submit false testimony to a judge without fear of criminal prosecution.

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