4th Circuit vacates discipline against lawyer who filed hundreds of ADA ‘tester’ cases

A panel of Maryland federal judges failed to give proper notice to a lawyer who was disciplined for his actions in hundreds of “tester” cases filed across the country, the 4th U.S. Circuit Court of Appeals ruled this week.

The appeals court vacated a six-month suspension against the lawyer, Tristan W. Gillespie, and remanded the disciplinary case for further proceedings.

Gillespie was suspended from practicing before the District of Maryland in July, shortly after a three-judge panel found that he had made repeated misrepresentations throughout his extensive “tester” litigation under the Americans with Disabilities Act.

The scathing report and recommendation found that Gillespie exaggerated the number of hours he spent working on cookie-cutter lawsuits filed against hotels whose websites did not provide enough information about the facility’s accessibility.

Gillespie, working with another lawyer, filed more than 600 lawsuits mostly on behalf of two clients who are known as civil rights “testers.” They do not plan to win money from their cases but use the litigation to push hotels to come into compliance with the ADA — and, importantly, to pay settlements that covered attorneys’ fees. The clients also did not have to pay their attorneys, though the hotels being sued did not know that, according to the report and recommendation.

The panel of Maryland judges wrote that this settlement process “essentially perpetrates a fraud on the defendant hotels by leading them to believe the clients are responsible for the attorney fees and expenses even though they are not.”

The panel also accused Gillespie of failing to communicate properly with his clients, among other allegations. The lawyer acknowledged that he had not reviewed his fee agreement with his clients or even read it closely himself, the panel wrote. Gillespie also dismissed more than 100 active ADA cases in advance of his disciplinary hearing, though he later claimed that was because of unfavorable court rulings.

“Gillespie violated the rules not once or twice, but hundreds of times,” the panel wrote. “In each case, he never explained the fee agreements or reviewed the settlement agreements with his clients. When he was in hot water with this Court, he reflexively dismissed over 100 active cases without ever consulting his clients. On the whole, Gillespie litigated his cases with his clients as an afterthought. They were largely irrelevant to the process.”

Gillespie appealed and objected to the panel’s findings, specifically arguing that he was not notified in advance that he would have to defend himself against some of the allegations included in the report and recommendation.

Gillespie had already been subject to a lengthy probe by an outside investigator — who recommended only that the lawyer be admonished — before the panel of judges held a disciplinary hearing, according to court filings.

“The disciplinary order’s most inflammatory and damaging findings … were based on entirely new charges for which I did not receive any reasonable notice prior to the hearing,” he wrote to the 4th Circuit.

In fact, Gillespie wrote, his partner in the ADA litigation had kept clients informed about their lawsuits.

The 4th Circuit agreed that Gillespie did not receive adequate notice of some of the disciplinary allegations. It remanded the case back to the District of Maryland.

“We conclude that the district court failed to provide adequate notice to Gillespie of its intent to rely on the adequacy of his communication with, and representation of, his clients as part of its determination of whether to discipline him,” the three-judge appellate panel wrote.

The 4th Circuit also wrote in a footnote that Gillespie did receive adequate notice that the disciplinary panel would examine “the misleading nature of his settlement demands and agreements.”

Gillespie declined to comment Wednesday.

One of the ADA tester cases recently went before the U.S. Supreme Court for oral argument. Deborah Laufer, one of Gillespie’s plaintiffs, asked for the case to be dismissed in July after the disciplinary order was released. The justices declined to dismiss the case, with which Gillespie was not involved, but agreed they would hear argument on whether it was moot.