THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Tuesday, June 25, 1996 TAG: 9606250240
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: NORFOLK LENGTH: 71 lines
A group of 189 Portsmouth police officers - most of the city's police force - is suing their former attorney, saying he mishandled their overtime claims against the city from 1992 to 1995.
The officers seek $21.5 million from the Fairfax County lawyer, his law firm and his two former law firms.
The officers say the lawyer, Michael A. Kernbach, delayed their overtime lawsuit against Portsmouth so that they lost three years worth of claims, costing them $16.5 million.
They also say Kernbach did not adequately prepare their case, then deceived them into taking a smaller-than-expected settlement. They say this cost them an additional $5 million.
The lawsuit was filed Wednesday in Norfolk Circuit Court by the officers' new lawyers, Jeffrey A. Breit and Gregory A. Giordano. They declined to comment Monday.
Kernbach said he could not discuss the specific charges, but he generally denied them.
``These allegations have been percolating a while,'' Kernbach said. ``There are certainly two sides to every story. Whatever allegations they're making, the firm and I obviously deny them. The (overtime) case was settled. These complaints were brought to the attention of the court and the court approved the settlement.''
The lawsuit stems from an overtime dispute that began in 1992 and was settled out of court last year. It involved nearly the entire Portsmouth police force.
More than 200 of Portsmouth's 220 officers claimed the city owed them overtime pay for such duties as appearing in court, taking care of police dogs and working through lunch hours.
At first, the officers hired Kernbach, a Northern Virginia lawyer specializing in police matters. That was in late 1992 or early 1993. Later, in 1994, a small group of detectives broke away from Kernbach and hired another law firm: Sacks, Sacks & Imprevento of Norfolk.
In April 1995, Portsmouth settled the claims out of court. Two settlements emerged - one for Kernbach's officers, another for the detectives. The detectives got more money for fewer officers. Lawyers said this was based on the hours worked by each officer.
The 182 Kernbach officers got $584,000, an average of $3,029 per officer. The 24 detectives got about $800,000, an average of $33,333 per officer.
The Kernbach officers cried foul. They said Kernbach misled them about the size of the settlement.
``We were under the impression we would get one fee. Once we got looking at it, it turns out it's not what we expected,'' Detective Robert Simmons, a spokesman for the Kernbach officers, said at the time.
The settlement, however, was binding. Kernbach accepted it on behalf of his officers.
Now, 189 officers are suing Kernbach for negligence.
First, the officers say Kernbach ``delayed and procrastinated in bringing the lawsuit,'' which was filed in February 1994. They say this prevented them from claiming overtime from 1989 to 1992 because of a statute of limitations.
Second, the officers say Kernbach misled them about the settlement amount. They say Kernbach ``took a passive role'' for his officers while Sacks, Sacks & Imprevento pushed the detectives' cases. When the detectives settled their claims on the eve of trial, Kernbach was forced into emergency settlement negotiations for his clients because he was unprepared for trial, the lawsuit says.
At that point, the lawsuit says, Kernbach deceived the officers into accepting a settlement not in their best interests. The officers say Kernbach told them that Portsmouth would pay half their claims, but it proved to be much less than that, the lawsuit says.
A lawsuit represents only one side of a dispute. Kernbach has 30 days to file his response. by CNB