Naming Divorce Lawyer A "Grave Injustice?"

Despite having a “strong case” for naming an attorney who allegedly concealed his representation of both parties in a divorce proceeding, a California appeals court said it would be “a grave injustice” to identify him in case he is at some point exonerated.

The 4th District Court of Appeal refers to the attorney only as “Attorney V” in its opinion affirming that the “lopsided” divorce judgment of Werner and Flora Deffner should be set aside because it was “procured directly” through a fraud on a trial judge.

The case "involves one of the most horrendous frauds on the court imaginable," the court said.

Responding to an inquiry from On Point, an Orange County Superior Court clerk identified the attorney from court records as Michael J. Varisco, a sole practitioner in Irvine.

Varisco allegedly passed himself off to Judge Tam Nomoto Schumann as counsel for Flora Deffner when he was actually representing her husband. As part of the judgment, Werner, who claimed to be representing himself, got 80 percent of the marital assets and Flora waived spousal support.

“We recognize that, given the gravity of the offense, there is a strong case for naming Attorney V,” Justice David G. Sills of the 4th District wrote. But he noted there was “conflicting evidence” about “Attorney V's apparent fraud on the trial court” and that the attorney could “contest the issue in future matters,” such as a state bar disciplinary proceeding.

“While we, as an appellate court, are bound by the trial court’s implied finding that Attorney V did indeed impersonate counsel for the opposite party ... it would be a grave injustice to him to name him if, for example, he were in some future context to be exonerated,” Sills said.

But Judge Frederick P. Aguirre, who threw out the Deffners' judgment, was not “implying” anything when he said the case “just strikes an egregious chord in my body that I just can’t sustain the [marital settlement] agreement.”

Moreover, as Sills himself observed, appeals courts have been criticized for burying information in their rulings to save judges and attorneys from embarrassment. At a time when even the U.S. Supreme Court is opening up to public access, the 4th District should not be protecting an attorney “of record” from the publicity of its appellate record.

Varisco declined to comment, saying he needed time to review the ruling.

By Matthew Heller
9/29/06