Case of Dayton-area law firm suing ex-attorney escalates

Jack R. Hilgeman
Jack R. Hilgeman

The recent legal wrangling in the case of a local law firm suing its former attorney for an alleged “weekend raid” of clients has turned contentious.

Recent motions and responses filed address the length of documents, accuse one side of “exulting form over substance” and that confidential information was exposed.

Attorney Jack R. Hilgeman was sued last year by Horenstein, Nicholson & Blumenthal (HN&B), alleging that at 9:45 p.m. on Friday, May 5, 2017, Hilgeman sent an email of resignation. The complaint said Hilgeman then copied confidential information onto his own devices for the purposes of taking clients to his new firm.

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Hilgeman allegedly convinced his paralegal — who also had knowledge of the filing system with client information — to join him in at Cowan & Hilgemanm, according to the lawsuit.

In Montgomery County Common Pleas Court documents, Hilgeman denied the allegations and counter-sued for defamation. Last year, the case was stayed until a fee dispute portion was resolved by the Dayton Bar Association. A motion to restrict the civil case’s docket from public view was denied.

On March 19, Hilgeman’s attorney, Richard Boucher, filed a motion to confirm the arbitration of the fee dispute decision which he said was unanimously reached by a Dayton Bar Association committee. The actual decision was not included in the motion.

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HN&B’s attorney, Craig Matthews, filed a motion April 2 asking visiting Judge Timothy Hogan to vacate the arbitration decision and argued that any such ruling wasn’t binding.

“Based on the sworn testimony of Jack Hilgeman and the undisputed testimony of (HN&B’s) Fred Sommer and Mike Harding, a computer forensic expert, it is beyond good faith dispute that Jack Hilgeman engaged in a premeditated plan to assure that confidential information concerning clients of (HN&B) was copied to his personal device prior to his departure,” Matthews wrote. “And that the Firm’s clients were informed that Mr. Hilgeman had left before (HN&B) knew he was gone.”

Matthews also wrote that at a temporary restraining order hearing, it was agreed Hogan would rule on any findings from the Dayton Bar Association.

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“The parties never agreed that the referral to the DBA would result in any finding that would be ‘binding,’ ” Matthews wrote. “Further, the Order issued after the TRO hearing referred to a “mediation or arbitration” and did not indicate that the proceedings, whatever they were, would be binding.”

Efforts to get comment from Boucher about Matthews’ motion were unsuccessful. But Boucher did write that Matthews’ 17-page, single-spaced motion would have been more than double the allowable 14-page, double-spaced limit.

Matthews declined comment on his motion or the arbitration decision, but he wrote that Hilgeman’s testimony and computer forensic evidence showed that Hilgeman sent his email of resignation to someone he knew wouldn’t see it until the following Monday morning.

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Matthews also wrote that Hilgeman also used confidential firm information to create a mass mailing to HN&B clients on April 27, 2017 and copied confidential client information onto a thumb drive on the morning of May 5, 2017.

“If copying the Firm’s confidential client information is not the ‘raiding’ of client files, which is expressly admonished in Opinion 98-5 of the Supreme Court of Ohio Board of Commissioners on Grievances and Discipline,” Matthews wrote. “Nothing is.”

Boucher filed a motion to seal Matthew’s motion on grounds that it included privileged, private and confidential information. Hogan didn’t seal the motion but did seal one exhibit, which was resubmitted with redactions.

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Matthews wrote that Boucher’s objections to his 17-page filing exulted “form over substance.”

Boucher wrote that: “It is noteworthy, that upon review of all motions and memorandum filed by the Plaintiff in this matter, one must question Plaintiff’s intent and motive to circumvent the rules of court.”

No hearings are currently scheduled.