AFFIDAVIT by xiaohuicaicai




                           -against-                                        Index No. 103031/06

STATE OF NEW YORK                     )
                                      )        ss:

STEVEN ROSENBAUM, being duly sworn, says and deposes:


2. Defendants represented plaintiff from 1999 to the recent past, and after January, 2002 continued

and made new retainer or waiver agreements.

3. Defendants never provided plaintiff with any printed materials pursuant to 22 NYCRR Part 137

at any time.

4. The allegations of the complaint concern legal malpractice, violations of ethical obligations,

conflicts of interest, self dealing by the defendant, fee disputes, disgorgement of fees, and demands

for both compensatory damages and punitive damages.

5.       Plaintiff is a leading producer of documentary films, the owner of the critically praised

CameraPlanet 9/11 Archive, and the award winning producter of non-fiction filmed content for a

major Cable and Broadcast clients. The Plaintiff has brought this legal malpractice action against

its former attorneys, who represented it in transactional work. (*Loeb didn’t represent us in

litigation against Stephen Carlis – if that was the meaning of this sentence).
6.       Up until September, 2004 Defendants represented Plaintiff in its business transactions,
including its internal transactions which included one Carlis. Carlis was an employee, who, it is

alleged, set up numerous competitive ventures and relationships within that of plaintiff, and

enlisted the aid of defendants to advise him on the structure, deal points, and specific competitive

entities and operations of those parasitic enterprises.

7       Throughout the period in question, Plaintiff's long-time outside counsel, Loeb & Loeb LLP,

["Loeb"] with and through its attorney Marc Chamlin ["Chamlin"], counseled Carlis, and other

persons associated with him with respect to the competitive ventures that were siphoning off

Plaintiff's business. Plaintiff never authorized this dual representation, which was unknown to

8.      Loeb & Loeb LLP is an entertainment law firm with offices in New York, Los Angeles,

Chicago, and Nashville. It maintains a law firm with principal places of business at 345 Park

Avenue, New York, NY 10154.

9.      Chamlin is a partner in the law firm of Loeb & Loeb, LLP, and resident a the New York

office of Loeb. Chamlin has served as principal outside counsel to Plaintiff from May, 1999

through October, 2005.

10.     Without Plaintiff's knowledge or consent, both Chamlin and Loeb concurrently represented

Carlis and his outside partners in ventures which competed with Plaintiff, inter alia, Frederator,

Bolder Media, JoeJack and Instigator.

11.     Defendant Chamlin entered into negotiations with Carlis, whose interests were adverse to

plaintiff, even while outside counsel to Plaintiff. As an example, during January, 2003 Defendant

Chamlin was part of a negotiation between Carlis, Siebert and Karen Herbert for a new partnership.

During this period, Defendant Chamlin was representing Carlis and Carlis' outside partners at he

same time in connection with Carlis other entities within and competing with Plaintiff's business.

12.     Defendant Chamlin served as principal outside counsel to CameraPlanet starting in May,
1999 and had represented CameraPlanet on matters as far back as early 1994. In his capacity as

CameraPlanet's partner-counsel personally and as partner of and for Defendant Loeb, Chamlin
undertook a wide range of tasks, including drafting contracts, negotiating talent and employment

deals, and advising plaintiff on hiring and termination issues. Defendants Chamlin and Loeb were

the longest involved and most trusted outside advisors, and attorneys, to the company on both day-

to-day matters and long-term planning decision for growth and risk management. In these

capacities, Defendants were privy to a wealth of Plaintiff's confidential and proprietary information.

13.    Defendant Loeb was engaged nearly continuously by Plaintiff from May, 1999 through

September, 2004. The firm billed plaintiff nearly every month during that period, with total fees in

excess of $ 220,000.
14.    Defendants were well aware that Plaintiff was a current and continuing client of the firm.

Even as late as July 16, 2004, defendants sought and obtained a conflict wavier so that its partner,

Roger Arar, could act on behalf of American Movie Classics Company, adverse to CameraPlanet in

connection with a television project known as “My Way”.

15.    Defendants knew that Carlis' interests were adverse to those of plaintiff, and on May 19,

2003, Chamlin wrote to Rosenbaum regarding the ongoing discussions concerning a possible equity

share for Carlis. Chamlin wrote that "We'll reconnect with Mr, Carlis and Counsel shortly," clearly

indicating that Defendant Chamlin understood that Carlis' interests were adverse to plaintiff's in the

areas of CameraPlanet ownership, equity, and control, and could not be concurrently represented by

Defendant Loeb.

16.    Nevertheless, throughout 2003 and 2004, Defendant Chamlin was concurrently acting as

legal counsel and business affairs adviser to both Plaintiff and the competitive business ventures of

Carlis, Siebert and Miller.

17.    Defendants Chamlin and Loeb were intimately involved with Plaintiff's contracts and

business strategy, were regularly briefed on Plaintiff's client relationships and development targets,

were advising Plaintiff on Carlis' demands for equity, and at the same time were acting as the legal

architect for the larger and directly-competitive entities being formed by Carlis.
18.    Throughout all of this, Defendant Chamlin was deeply engaged in conversations with

Plaintiff regarding financing, corporate structure, and a strategy to grow the business.
19.      Through all of this, Defendant Chamlin was e-mailing Carlis directly about the Seibert


20.      Chamlin's involvement as counsel to Carlis' illicit non-CameraPlanet ventures, in

derogation of Chamlin's duty to CameraPlanet continued without abatement throughout 2004.

21.      While all this was happening, Defendants Chamlin and Loeb continued to be working for,

billing to, and receiving compensation from plaintiff and its Chief Executive Officer Rosenbaum

who along with Pamela Yoder, are the sole shareholders of CameraPlanet. Rosenbaum and Yoder

were the client decision makers with respect to Loeb's representation of Plaintiff CameraPlanet.
22.      Rosenbaum had a meeting with Chamlin at the offices of defendant Loeb on 7/2/03 at 9:30

a.m., at which Chamlin told Rosenbaum that "Carlis doing any deals outside of CameraPlanet

would be a specific breach of his duty to CameraPlanet." From Chamlin's silence, Rosenbaum was

fraudulently led to believe that Chamlin was not and would not engage in dual representation

without clearance, would not and had not represented Carlis in any of the Carlis deals.

23.      Ethical standards were violated, and Chamlin and Loeb & Loeb deviated from good and

adequate standards of legal representation, and breached their legal and ethical duties to plaintiff,

consequently committing legal malpractice by concurrently representing Plaintiff and outside

competitive ventures of Carlis, Seibert, Quinlan and Miller, all to plaintiff's detriment, without the

knowledge of, the permission of, or the agreement of plaintiff to these conflicts.

24.      CameraPlanet had differing interests from the other entities pursuant to 22 NYCRR 

1200.24 and EC 5-18. Defendants represented both entities concurrently without authorization, and

without disclosure to Plaintiff.

25.      This case revolves around the questions of ethical violations, conflicts of interest, legal

malpractice, and include a demand for punitive damages.

26.      Defendants now move for a stay of these proceedings and demand arbitration based upon

their retainer agreement. They do not mention 22 NYCRR Part 137, et seq, nor the principal that
there is a public policy against arbitration of attorney-client disputes.

27.      I ask that the court retain jurisdiction over this case, and not permit Loeb & Loeb to shunt
this matter away from the public and court scrutiny it deserves.

28.     Lawyers play a vital role in society, and my own reading tells me that courts have

determined that cases alleging violations of rule of professional conduct should not be subject to

arbitration. Rather, they should be brought before the scrutiny of the courts.

29.     Furthermore, arbitrators are not permitted to consider punitive damages. Public policy

requires that punitive damages, as a sanction, are reserved to the State, and may not be granted by


30.     A number of recent public incidents concerning entertainment attorney have come to light
in the press. The New York Times has published accounts of the insider-dealing and conflicts of

interest which take place within entertainment law firms, and this problem is endemic within the

entertainment industry.

31.     More, rather than less, scrutiny is needed in this area. Loeb & Loeb have a superior

bargaining position when making these retainer agreements, and they write the retainer agreement

with the intent of avoiding public scrutiny of these conflicts of interest and self-dealing which arose

in my case. While the retainer agreement has language that puts me on notice that Arbitration

means I waive my right to a jury trial, it explicitly doesn’t inform me that I’m waiving my right to

punative damages. Even a lay person could understand the impact of that acceptance of arbitration,

in the unlikely even of a serious breach.

32.     The Courts appear empowered to, and in my opinion, should scrutinize allegations of

unscrupulous attorney behavior, and violations of the ethical duties of attorneys. I do not believe

that arbitrators will be able to, nor have the background to make decisions based upon violations of

ethical rules, and insider-self-dealing.

33.     Mr. Elsberg himself has written about cases in which the courts have determined that

arbitration of cases involving such violations is against public policy. I enclose a copy of his own

article in the New York Law Journal.
34.     For all of these reasons, and because my legal research tells me that there are cases which

have found that an arbitration agreement such as this is contrary to public policy and that
defendant's motion which seeks to take this case out of the court's scrutiny and assign it to

arbitrators with insufficient knowledge of ethical rules, the law of ethical violations, and without

the court's experience and wisdom should be denied.

35.    Plaintiff asks that the court deny this motion and continue to handle this case.

36.    For all these reasons, and based upon the cases cited herein, plaintiff asks that this court

deny defendant's motion, which seeks a stay of proceedings and a direction to arbitrate, and
instead direct defendants to answer the complaint.

                                              Steve Rosenbaum

Sworn to before me this
 day of      2006

       Notary Public

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