December 19, 1994

Donald Driscoll says his unusual suits enforce the law. Detractors call him an extortionist.

Like Wyatt Earp bringing the law to Tombstone, Donald Driscoll has taken to enforcing his own brand of vigilante justice.

Working out of a three-room Oakland office housing three employees, two cats and a blizzard of scattered papers, he has used litigation as a weapon to enforce laws that the "powers that be" seem to have neglected. Driscoll has sued movie studios and wineries for false advertising, computer printer manufacturers for overstating their products' capabilities, and supermarkets for not posting warnings about foods containing saccharine - all using state and federal laws that allow an individual to act as a "private attorney general."

His posse of plaintiffs includes his mother, his sister and his secretary. Most of the suits - which usually allege fraud and racketeering - don't make it to trial, instead either settling or being tossed out of court.

These tactics are bound to spawn detractors, and Driscoll has many. Lawyers who have gone up against him often break into laughter at the mention of his name, while disgruntled clients spare no hyperbole in charging that he nearly sabotaged their suits.

Driscoll's latest gambit, a batch of suits targeting store owners in seven Bay Area counties who allegedly sold cigarettes to minors, has prompted a State Bar inquiry into allegations that his settlement offers border on extortion. On Thursday, the State Bar made the unusual move of announcing publicly that it was investigating him. Investigations normally remain confidential until they have been assigned for prosecution.

Driscoll characterizes the complaints as an attempt by the shopkeepers to continue raking in profits and defying a good law. "I'm confident that what we're doing is proper," he maintains.

Driscoll also portrays the criticism leveled against his legal ethics as an example of what is wrong with the profession. "Lawyers are held up as admirable for not getting involved in their cases or having any interest in their cases," he says. "I let myself be influenced by what I think is right or wrong."

This isn't the first time Driscoll has pushed the bounds of the private attorney general statute. Earlier this year, he brought false advertising suits against Miramax Films and Universal City Studios. He alleged that Miramax overstated its opening weekend gross for the movie Pulp Fiction and that Universal promoted the film In the Name of the Father as a true story when in fact it contained elements of fiction. The Universal suit recently settled in an undisclosed deal; the Miramax suit is pending.

Charles Spinosa, whom Driscoll represented in a suit against Berkeley's Barrington Hall cooperative, says Driscoll has chosen, both as a matter of personal conviction and as an intellectual exercise, to build a practice bent on opening society's eyes to lawbreaking that it chooses to ignore. "Don, as a lawyer, is against organized criminal activity," Spinosa claims. "That is the kind of activity that hasn't been defined well in law, that Don wants to bring to the attention of the courts."

2,000 DEFENDANTS NAMED

Driscoll makes an unlikely crime fighter, with his rumpled suits and his nest of disheveled brown hair. His office in a cavernous old Victorian in downtown Oakland is littered with papers, clothes hangers, wrappers from bygone meals and boxes housing more papers.

The more than 5,000 declarations from the cigarette suits take up four large storage boxes. He has named 2,000 defendants, ranging from small grocery stores to gas stations and car washes.

The plaintiff in each of the seven suits is Stop Youth Addiction Inc., an anti-smoking group Driscoll formed with his mother. Driscoll says he and his mom invested $50,000 to run their own private sting operation against retailers, paying teenagers an hourly wage to go into 4,300 stores, buy cigarettes and leave them on the counter after the purchase.

Then, armed with signed declarations from their underage soldiers and adult witnesses, the group sued the stores for engaging in unfair business practices by violating state laws against selling cigarettes to minors.

Citing studies that claim many smokers pick up the habit as adolescents, Driscoll's complaint demands that the stores turn proceeds from cigarette sales over to the state to compensate for the public health costs of smoking. It also asks for reasonable attorneys fees.

Seven of the suits are awaiting responses. In two of the cases judges denied the plaintiff's request for preliminary injunctions to stop the stores from selling cigarettes to minors. One, against the Southland Corp. and 100 of its 7-11 stores, recently survived a demurrer.

Like most of Driscoll's suits, the cigarette case utilizes California's private attorney general law that allows citizens to bring suit alleging an "unlawful…business act or practice." By charging that the retailers violated the Penal Code in selling cigarettes to minors, Driscoll claims they have engaged in unfair competition. The statue also provides for attorneys fees for successful plaintiffs.

Lawyers representing the stores argue that, even if their clients broke the law (which they deny), and even if Driscoll's evidence stands up in court (they think it won't), the section of the Penal Code that addresses cigarette sales specifically calls for prosecution by a "city attorney, a county counsel or a district attorney."

That's exactly the point of his suit, counters Driscoll. Despite the enactment in September of new regulations governing sales to minors, lackadaisical enforcement has failed to diminish youths' access to tobacco.

"Everybody knows a kid can walk into a store and buy cigarettes. It's self-evident that it would be easy to find out who is selling and stop them," Driscoll asserts. "We don't do that in our society."

Still, on Oct. 21, Yolo County Superior Court Judge Thomas Warriner expressed skepticism about Driscoll's standing to bring the suit and denied Driscoll a preliminary injunction.

And, in a footnote at the end of the opinion, the court also noted with concern "the evidence of attempts by … Driscoll to obtain monetary payments from franchisee defendants prior to filing the lawsuit … in exchange for dropping their names from the action."

That, says Patrick Carter, who represents 7-11 franchisees in the case, is tantamount to extortion. Store owners allege that, in addition to calling them before filing his suit, Driscoll also sent out a letter to some offering to drop the suit in return for $430 in attorney fees and their promise to stop selling cigarettes to minors.

"Stop Youth Addiction, Inc. will get the most in attorney fees from whoever stays in longest," the letter reads. "Just the same, Stop Youth Addiction wants to settle now, because it is trying to solve a problem now involving minors buying cigarettes."

WAKE-UP CALL OR STRONG-ARMING?

Driscoll, who has since drafted a standard $100 settlement agreement and another one that drops defendants from the suit, gratis, if they agree to stop selling cigarettes altogether, says the letters were part of a strategy to convince his opponents to take the law seriously. He says he has been willing to allow any defendant who's uncomfortable giving money to Stop Youth Addiction to donate their settlement money to the American Lung Association instead.

So far, he says he has collected $7,500 from defendants. No one yet has donated to the lung association, but he says he expects some donations soon.

As for the phone calls, Driscoll says he was required to give 24 hours' notice before seeking a temporary restraining order, and some storekeepers asked him at that time how much a settlement would cost.

But Carter, a partner with Fine, Carter & Koenigsburg, believes Driscoll is breaking the law by having children try to buy cigarettes. He also says Driscoll has violated State Bar ethics rules that prohibit a lawyer from contacting represented parties without first contacting their lawyers. Carter views the whole thing as a ploy to collect attorneys fees. "He forms this corporation, sets his mother up as president and shareholder, with no offices and no payroll," he says. "And his mother confirms on the stand that the only way Driscoll will get paid is through attorney fees from defendants."

Despite the recent uproar, State Bar Chief Trial Counsel Judy Johnson emphasizes that Driscoll has not been charged with anything. She says that the volume of complaints and media inquiries, and the potential for public harm if Driscoll has acted improperly, prompted the Bar to advise the public that it was on top of the situation.

"At least some of the complainants have suggested that targets of the lawsuit are mom-and-pop grocery stores owned by non-English speaking immigrants who may not be aware of their legal rights and remedies," she says.

Driscoll defends his fee request as simply a wake-up call to the defendant stores. "How do you convince people that they have a problem in breaking the law? One way is that there's an attorney on the other side pushing," he says. "Our settlement was less than the retainer offered by their lawyer. Their refusal to settle was driven by ideology, by the idea that it's wrong for someone with more energy than the government to come after them."

UNHAPPY CLIENTS

Energetic doesn't even begin to describe Driscoll, say two former clients who think "chaotic" more aptly describes his style. Beverly Potter and Sebastian Orfali recall Driscoll's office as a place where half-eaten hamburgers sat for days atop legal briefs and the kitty litter box went unchanged for weeks, while Driscoll himself carried documents to court in paper bags in lieu of a briefcase.

Potter and Orfali, and fellow plaintiffs Charles Spinosa and Ruth Oscar, hired Driscoll in their effort to tame Barrington Hall, the notoriously raucous Berkeley cooperative that was a center for South Campus drug dealing in the years leading up to the 1988 suit.

Spinosa says that he and Oscar were happy with Driscoll's lawyering. Potter and Orfali, however, fired Driscoll after George Proper, the general manager of the University Students Cooperative Association, which owned Barrington Hall, filed a $5 million malicious prosecution suit against them. Driscoll filed not only a public nuisance suit, but federal RICO charges (another frequent weapon in his arsenal) alleging that Barrington Hall was engaged in a drug-dealing racket.

Potter and Orfali believe that by naming Proper as a defendant and alleging that he was part of a conspiracy to perpetuate drug dealing at Barrington, Driscoll did more damage than good to their case.

"We felt that Don made these allegations and used these radical theories and put us, his clients, in jeopardy," says Orfali. "In addition to putting us in jeopardy to losing everything we owned, he wouldn't allow us to dismiss him."

In the end, after fierce resistance from Driscoll and some wrangling over his contingency agreement, they jettisoned him and hired another lawyer to represent them until the case settled.

They have since complained to the State Bar alleging that Driscoll never set up a separate account to cover their costs in the case. Bar rules require that lawyers not commingle their clients' funds with their own.

According to Potter, a State Bar investigator has told her and Orfali that their complaint has been assigned for prosecution, and is on hold while the latest allegations against Driscoll are investigated.

Driscoll asserts that he did nothing wrong and explains that tensions ran high in the case. He believes Potter and Orfali used the case as an outlet for their frustrations with the entire situation. "What Beverly [Potter] went through nobody should have to go through," he says. "They had very little sympathy from the community, they had very little support from the city council."

Co-plaintiff Spinosa, who now is an assistant professor of English at Miami University of Ohio, has no complaints about Driscoll. Although he was also named as a defendant in the malicious prosecution suit, he accepted Driscoll's assurance that it was a defense tactic to drive a wedge between Driscoll and his clients.

While the malicious prosecution suit was, indeed, dropped in the settlement, the ill feelings Potter and Orfali felt toward Driscoll have not dissipated. They felt that their desire to calm things down at Barrington became secondary to Driscoll's own misguided moral crusade against the students there. "He decides these people are morally wrong people, then he commits himself to going to any length to get them, " says Orfali. "It was like he was on a mission, a jihad of some sort. He was like a legal terrorist."

A lawyer who says he knows Driscoll well - and requested anonymity - explains that Driscoll gets so caught up in the right and wrong of the situation that he sometimes loses track of his role as a lawyer. "He is a real 'cause' person," says the lawyer. "He will go after a cause with very imaginative, new approaches, but he does not know when to stop. He has no judgment how far to go and how to litigate."

In interviews Driscoll seems pleasant enough, but another attorney who has run up against him and asked not to be named describes him as "tremendously inflammatory with opposing counsel." Yet another anonymous opponent describes him as a "loose cannon, an Ollie North type."

A HINT OF SINCERITY

Still, despite this chorus of criticism, some opponents also acknowledge of hint of sincerity in his motives.

Patrick Carter, the 7-11 franchisees' lawyer who plans to file a malicious prosecution suit on behalf of his clients in the cigarette case if it is dismissed, says he caught a glimpse of this while examining Driscoll's mother on the stand in Yolo County. He remembers that she looked over at her son as she spoke of the death of her husband, a lifelong smoker, from lung cancer. "I do sense some spark of altruism on his part," Carter says.

Driscoll doesn't seem bothered by the accusations that he's motivated by money. He notes that most lawyers are. "What is wrong with as a family trying to do something about selling cigarettes to minors?" he asks. "Is that worse than being paid $225 an hour to defend a client in court against charges of selling cigarettes when you know very well that they did?"

While Driscoll certainly hopes to make a living from his practice, former client Spinosa says that what drives Driscoll is the fact that businesses will willfully disregard laws, simply because they aren't regularly enforced.

"Don Driscoll is an entrepreneurial lawyer. The way in which he's developed his practice is by taking legal positions that are a little bit unconventional," says Spinosa. "That's what entrepreneurs do in business, and in business we say that's wonderful. In law, we can say it's admirable, or we can say it's nutty. I say it's admirable."

The fruits of Driscoll's handiwork can pop up in the most unexpected places. Walk past Barrington Hall, which has been around since Berkeley's counterculture heyday, and you now find an unremarkable, dormitory-style lodging, sans hippies, drums, and psychedelia. Wander into Frank's Liquors on Haight Street, and you'll see seven new signs around the cash register stating that the store won't sell cigarettes to minors.

Store owner Frank Zeidan, who is named in Driscoll's suit but hasn't yet been served, posted the notices after reading about an earlier suit filed by Driscoll. Even the Food and Drug Administration has asked Driscoll about his sting as part of its own investigations into cigarette sales, according to an agency employee.

As Driscoll explains it, ultimate legal victory isn't always his final goal. "We'll win or we'll lose. But in the meantime, we'll stop stores from selling cigarettes to minors."

Not surprisingly, his targets - who probably do care if they win or lose - find those words suspect. Carter, the lawyer for Southland, says his clients view suits like Driscoll's as some kind of a "shyster plot."

"When my clients heard that the president of Stop Youth Addiction was the mother of the attorney, they were just appalled," he says. "This stuff represents the kind of conduct that really gives lawyers a bad name."

Driscoll, however, argues that lawyers' more common business practices give them a bad name.

"What's fascinating is that if I chose my clients because of the amount they were willing to pay me, that would be OK," he says. "But what I'm doing is suspect because I'm promoting my family's values."

END