Lawyer's Phony Letter That Got Her Boss Fired Could Get Her Disbarred
The Connecticut Law Tribune by Douglas S. Malan - June 30, 2008
It started as a political story. Attorney Maureen Duggan was working for a state agency boss who, she claims, pressured her to go out for drinks with him, who worked fewer than 40 hours a week, and who played fast and loose with administrative rules in his position of power. As the sole provider for her family, Duggan told officials that she couldn't risk losing her job by challenging his actions. So she crafted an anonymous letter, filled with typos, purportedly from a parking lot attendant at the State Ethics Commission office in Hartford, and used it to kick-start a state investigation that led to the ouster of her boss, former Ethics Commission Director Alan S. Plofsky. Now, however, the focus is on Duggan and her future in the legal profession. Judicial Branch officials who investigate attorney misconduct say the reported fact pattern surrounding Duggan's case is extremely rare and most likely falls under Rules of Professional Conduct 8.4(3), which involves "dishonesty, fraud, deceit or misrepresentation." Practice Book rules prohibit these officials from discussing particulars of any grievance complaint or investigation against an attorney until probable cause is found. But as for a scenario involving a deceitful letter, "it's really something that you don't see every day," said Michael P. Bowler, head counsel of the Statewide Grievance Committee. Bowler said he has seen instances of an attorney drafting fraudulent documents to cover their illegal or ethically questionable activities, "but when's the last time I saw this as a way to raise claims against his or her boss? Never," Bowler added. "It's almost impossible to classify something like this."
Governor's Review
While Bowler has the sole authority to suspend or revoke Duggan's law license, Gov. M. Jodi Rell's office is looking into whether Duggan, who now works for the state Department of Children and Families, can be disciplined as a state employee. Anna Ficeto, the governor's chief legal counsel, conducted a preliminary review and referred the matter to the state Department of Administrative Services for further investigation, said Adam Liegeot, spokesman for the governor. "Governor Rell requested the review to determine what, if any, action would be appropriate under DAS personnel policies," Liegeot said, adding that possible discipline include counseling, a reprimand, a demotion, a suspension, sanctions or dismissal. "DAS officials are reviewing the matter and it would be inappropriate to comment further until the review is complete." Duggan wrote the letter in 2004 when she was a staff lawyer at the Ethics Commission. After it triggered an investigation, Duggan and staff lawyers Alice Sexton and Brenda Bergeron then filed sworn whistle-blower complaints against Plofsky. In those complaints, the women described an unprofessional workplace in which Plofsky referred to female staffers with pet names and encouraged Duggan to leak information to the media that he believed would help him politically but that she believed to be confidential.
Federal Lawsuit
Plofsky eventually was fired. He appealed and was moved to another state job before retiring earlier this year. He is suing the Office of State Ethics in federal court in New Haven over his firing, a case being heard by U.S. District Judge Janet C. Hall. A motion for summary judgment currently is pending, but Duggan's letter has no impact on that matter, said Gregg D. Adler, who is Plofsky's lawyer. The letter, however, could have an impact on a jury. "It's relevant in showing how the final events unfolded that led to Alan's termination," he noted.
In a deposition taken in January for that lawsuit, Duggan, who is now assistant legal director for DCF, revealed the genesis of the process by which Plofsky was removed from office. "I drafted this," she said, answering Adler's question about when she first saw the anonymous letter. "The only bit of good lawyering I did was moving through that answer and not acting surprised," he said. However, from the beginning, "it was really clear that [the letter] wasn't written by a parking lot attendant." Duggan said her husband at the time, Steven M. Regula, a lawyer for Chubb Specialty Insurance in Simsbury, knew about the letter and the work environment Plofsky created. "Ultimately I concluded that I couldn't send" the letter, Duggan said. "When I said I couldn't do this, what I intended to say was that I couldn't go through with going forward in this manner. What [Regula] took it to mean was that I couldn't do it and I needed his help. So he sent the letter."
Duggan and Regula are now divorced. Duggan declined comment for this story, as did her attorney, Hope C. Seeley of Santos & Seeley in Hartford. Regula did not return phone calls for comment. In her affidavit, Duggan said she took no steps to alert any of the ethics commissioners that she had written the letter. She said she was left with no choice but to use the letter to spearhead the investigation into Plofsky's activities. "I felt between a rock and a hard place," she said in her deposition. "I had a family to support and I couldn't walk away from my job. My husband wasn't working at the time. And on the other hand, I was going in to employment where I felt that the conduct and how the office was being run and how I was being treated personally by Mr. Plofsky was becoming increasingly problematic." When asked why she sent a letter supposedly written by a parking lot attendant rather than a letter with her name on it, she said: "I was very concerned for my financial well-being…and safety."
Monday, June 30, 2008
Sunday, June 29, 2008
Washington Post Editorial: Bias in High Places
Bias in High Places: The Justice Department had a litmus test.
EDITORIAL - The Washington Post - Sunday, June 29, 2008; B06
NOWHERE IS the need for impartial, nonpartisan decision-making more important than at the Justice Department. Charged with enforcing the nation's criminal and civil laws, lawyers in the department must be trusted to apply those laws evenly and without favor. That is one reason the department's policies insist that political affiliation play no role in the hiring of career attorneys. These policies, however, were systematically shredded by some in the Bush administration's Justice Department.
A recently released report by the Justice Department's Office of Inspector General and Office of Professional Responsibility confirmed that in 2002 under Attorney General John D. Ashcroft and again in 2006 under Attorney General Alberto R. Gonzales applicants for entry-level positions through the department's honors and summer internship programs were weeded out based on their perceived liberal leanings. The report is one in a series that examines the alleged politicization of the department during the Bush administration. The report focuses much attention on the infractions of two political appointees -- Esther Slater McDonald, then counsel to the associate attorney general, and Michael J. Elston, then chief of staff to Deputy Attorney General Paul J. McNulty. Before 2002, the vetting process for candidates for these programs was handled primarily by career Justice Department employees. In 2006 Mr. Elston was chair of the three-member committee that screened applications for both programs; Ms. McDonald was a member, as was career prosecutor Daniel Fridman, who is praised in the report for reporting violations by Mr. Elston and Ms. McDonald.
How did these two sniff out political proclivities? According to the report, Ms. McDonald searched candidates' applications for " 'leftist commentary and buzzwords' such as 'environmental justice,' 'social justice,' 'making policy,' or 'anything else that involves legislating rather than enforcing' "; she also apparently punished membership in liberal organizations. The report faults Mr. Elston for failing to stop Ms. McDonald's breaches and at times for using political markers to disqualify candidates on his own. The report concludes that both violated Justice Department policy and civil laws, but because they have left the department they can no longer be sanctioned for policy violations, and the department apparently has no standing to bring civil suits for the alleged legal violations. It would be wrong to assume that the Justice Department is now overrun with conservative zealots; most components hire only a handful of entry-level lawyers each year. Attorney General Michael B. Mukasey should be commended for condemning the use of politics in career hiring decisions and revising the selection process to ensure more neutral, merit-based assessments. It is disgraceful that his predecessors did not understand the damage they were doing.
EDITORIAL - The Washington Post - Sunday, June 29, 2008; B06
NOWHERE IS the need for impartial, nonpartisan decision-making more important than at the Justice Department. Charged with enforcing the nation's criminal and civil laws, lawyers in the department must be trusted to apply those laws evenly and without favor. That is one reason the department's policies insist that political affiliation play no role in the hiring of career attorneys. These policies, however, were systematically shredded by some in the Bush administration's Justice Department.
A recently released report by the Justice Department's Office of Inspector General and Office of Professional Responsibility confirmed that in 2002 under Attorney General John D. Ashcroft and again in 2006 under Attorney General Alberto R. Gonzales applicants for entry-level positions through the department's honors and summer internship programs were weeded out based on their perceived liberal leanings. The report is one in a series that examines the alleged politicization of the department during the Bush administration. The report focuses much attention on the infractions of two political appointees -- Esther Slater McDonald, then counsel to the associate attorney general, and Michael J. Elston, then chief of staff to Deputy Attorney General Paul J. McNulty. Before 2002, the vetting process for candidates for these programs was handled primarily by career Justice Department employees. In 2006 Mr. Elston was chair of the three-member committee that screened applications for both programs; Ms. McDonald was a member, as was career prosecutor Daniel Fridman, who is praised in the report for reporting violations by Mr. Elston and Ms. McDonald.
How did these two sniff out political proclivities? According to the report, Ms. McDonald searched candidates' applications for " 'leftist commentary and buzzwords' such as 'environmental justice,' 'social justice,' 'making policy,' or 'anything else that involves legislating rather than enforcing' "; she also apparently punished membership in liberal organizations. The report faults Mr. Elston for failing to stop Ms. McDonald's breaches and at times for using political markers to disqualify candidates on his own. The report concludes that both violated Justice Department policy and civil laws, but because they have left the department they can no longer be sanctioned for policy violations, and the department apparently has no standing to bring civil suits for the alleged legal violations. It would be wrong to assume that the Justice Department is now overrun with conservative zealots; most components hire only a handful of entry-level lawyers each year. Attorney General Michael B. Mukasey should be commended for condemning the use of politics in career hiring decisions and revising the selection process to ensure more neutral, merit-based assessments. It is disgraceful that his predecessors did not understand the damage they were doing.
Federal Judge: "The justice system made you a rich man, yet you attempted to corrupt it.”
Judge sentences Scruggs to five years
The Oxford Eagle - Alyssa Schnugg, Staff Writer - June 27, 2008
The Oxford Eagle - Alyssa Schnugg, Staff Writer - June 27, 2008
OXFORD, MISSISSIPPI- Richard Scruggs walked into the courtroom with a smile and a handshake for many in the room. His smile quickly faded as U.S. District Senior Judge Neal Biggers Jr. berated the powerful trial attorney for his actions before sentencing him to five years in prison. Scruggs began to cry, and his body shook as he leaned against his attorney John Keker. A chair was brought over for him to sit while Biggers finished sentencing him. “I couldn’t be more ashamed to be where I am today, to be mixed up in a judicial bribery scheme,” Scruggs said to the court prior to his sentencing. “I disappointed everyone — my wife, my family, my son, my friends ... I deeply regret my conduct ... There’s a scar and a stain on my soul forever.”
Scruggs was charged in November for attempting to bribe Circuit Court Judge Henry Lackey with $40,000 for a favorable ruling in a lawsuit against him. He pleaded guilty to one charge of conspiring to bribe a judge in March. Four others — his son Zach Scruggs, Timothy Balducci, Steven Patterson, and his former law partner Sidney Backstrom — were also charged and have since pleaded guilty. Backstrom’s sentencing was set for 2 this afternoon at the U.S. District Courthouse in Oxford. Biggers spoke to Scruggs for almost 10 minutes, reading parts of the oath lawyers take before becoming a lawyer and calling his crime “one of the worst crimes a lawyer could commit.” “This is very unpleasant for me,” Biggers said. “You not only attempted to bribe the court, but you violated the oath. ... You found out Judge Lackey is not a man to bribe. The justice system made you a rich man, yet you attempted to corrupt it.”
Scruggs was given a $250,000 fine and must report to prison by Aug. 4. He will afterward serve three years of supervised probation. Keker asked Biggers to recommend Scruggs serve his time at the Federal Prison Camp in Pensacola, Fla., since they have family there and it would make it easier for Scruggs’ wife, Diane, to visit him. Biggers obliged. “Best of luck to you,” were Biggers’ final words to Scruggs. Part of Scruggs’ plea agreement he signed in March capped the possible prison sentence at 60 months. Backstrom is expected to receive a 30-month sentence, since his plea agreement stated he could receive up to half of whatever sentence Scruggs received. The younger Scruggs is set for sentencing on July 2. Balducci and Patterson have not yet received sentencing dates.
End of a career
After establishing his small practice in Pascagoula, Scruggs gained national attention for earning millions of dollars from asbestos litigation and for his role in a multibillion-dollar settlement with tobacco companies in the mid-1990s. His meteoric rise in the legal profession and his sudden wealth was a story that could have been scripted by Hollywood — a fact emphasized when his case against the tobacco companies was made a central part of the 1999 movie “The Insider,” starring Al Pacino and Russell Crowe. An actor portrayed Scruggs in the movie, and some scenes were filmed at Scruggs’ home in Pascagoula. Scruggs, whose brother-in-law is former U.S. Sen. Trent Lott, moved his home and his practice from the Gulf Coast to Oxford about three years ago. He invested hundreds of thousands of dollars in renovations to his office over looking the Square and in the new home he is building around the corner from William Faulkner’s Rowan Oak.
Scruggs sued State Farm Insurance on behalf of hundreds of policyholders whose claims had been denied by insurance companies after their homes were destroyed in Hurricane Katrina. Scruggs put together a legal team, called the Scruggs Katrina Group, to represent the policyholders in the court battle against the insurance companies. One of the firms brought in to work with Scruggs was Jones, Funderburg, Sessums, Peterson & Lee, a law firm based in Jackson.
After the legal team reached a settlement with State Farm Insurance Cos. in January 2007, a dispute over how the $26.5 million in legal fees would be distributed to the firms erupted between the Jones law firm and the other members of the Scruggs Katrina Group. The Jones firm was kicked out of the legal team and, after attempts to resolve the compensation dispute failed, the Jones firm took the unusual step of filing a lawsuit against the other members of the legal team. The Jones firm, led by attorney John G. Jones, filed a civil lawsuit, Jones, et all. v. Scruggs, et al, in the Lafayette County Circuit Court in March 2007. The Jackson firm hired the Tollison Law Firm in Oxford to represent them in the litigation. That’s when Scruggs and the other four men indicted in November 2007 allegedly hatched a plan to bribe Lackey to issue a ruling in this legal dispute in their favor, according to the indictment.
Not over yet
Scruggs is still being investigated in the alleged attempted bribing of Hinds County Court Judge Bobby DeLaughter. According to court records, Scruggs used his influence with Lott to dangle the possibility of a federal judge appointment in front of DeLaughter if he ruled favorably in a lawsuit against Scruggs — Wilson v. Scruggs. Attorney Joey Langston has been indicted in that case and has pleaded guilty. He is awaiting sentencing. No other charges have been filed in that case thus far.
Scruggs was charged in November for attempting to bribe Circuit Court Judge Henry Lackey with $40,000 for a favorable ruling in a lawsuit against him. He pleaded guilty to one charge of conspiring to bribe a judge in March. Four others — his son Zach Scruggs, Timothy Balducci, Steven Patterson, and his former law partner Sidney Backstrom — were also charged and have since pleaded guilty. Backstrom’s sentencing was set for 2 this afternoon at the U.S. District Courthouse in Oxford. Biggers spoke to Scruggs for almost 10 minutes, reading parts of the oath lawyers take before becoming a lawyer and calling his crime “one of the worst crimes a lawyer could commit.” “This is very unpleasant for me,” Biggers said. “You not only attempted to bribe the court, but you violated the oath. ... You found out Judge Lackey is not a man to bribe. The justice system made you a rich man, yet you attempted to corrupt it.”
Scruggs was given a $250,000 fine and must report to prison by Aug. 4. He will afterward serve three years of supervised probation. Keker asked Biggers to recommend Scruggs serve his time at the Federal Prison Camp in Pensacola, Fla., since they have family there and it would make it easier for Scruggs’ wife, Diane, to visit him. Biggers obliged. “Best of luck to you,” were Biggers’ final words to Scruggs. Part of Scruggs’ plea agreement he signed in March capped the possible prison sentence at 60 months. Backstrom is expected to receive a 30-month sentence, since his plea agreement stated he could receive up to half of whatever sentence Scruggs received. The younger Scruggs is set for sentencing on July 2. Balducci and Patterson have not yet received sentencing dates.
End of a career
After establishing his small practice in Pascagoula, Scruggs gained national attention for earning millions of dollars from asbestos litigation and for his role in a multibillion-dollar settlement with tobacco companies in the mid-1990s. His meteoric rise in the legal profession and his sudden wealth was a story that could have been scripted by Hollywood — a fact emphasized when his case against the tobacco companies was made a central part of the 1999 movie “The Insider,” starring Al Pacino and Russell Crowe. An actor portrayed Scruggs in the movie, and some scenes were filmed at Scruggs’ home in Pascagoula. Scruggs, whose brother-in-law is former U.S. Sen. Trent Lott, moved his home and his practice from the Gulf Coast to Oxford about three years ago. He invested hundreds of thousands of dollars in renovations to his office over looking the Square and in the new home he is building around the corner from William Faulkner’s Rowan Oak.
Scruggs sued State Farm Insurance on behalf of hundreds of policyholders whose claims had been denied by insurance companies after their homes were destroyed in Hurricane Katrina. Scruggs put together a legal team, called the Scruggs Katrina Group, to represent the policyholders in the court battle against the insurance companies. One of the firms brought in to work with Scruggs was Jones, Funderburg, Sessums, Peterson & Lee, a law firm based in Jackson.
After the legal team reached a settlement with State Farm Insurance Cos. in January 2007, a dispute over how the $26.5 million in legal fees would be distributed to the firms erupted between the Jones law firm and the other members of the Scruggs Katrina Group. The Jones firm was kicked out of the legal team and, after attempts to resolve the compensation dispute failed, the Jones firm took the unusual step of filing a lawsuit against the other members of the legal team. The Jones firm, led by attorney John G. Jones, filed a civil lawsuit, Jones, et all. v. Scruggs, et al, in the Lafayette County Circuit Court in March 2007. The Jackson firm hired the Tollison Law Firm in Oxford to represent them in the litigation. That’s when Scruggs and the other four men indicted in November 2007 allegedly hatched a plan to bribe Lackey to issue a ruling in this legal dispute in their favor, according to the indictment.
Not over yet
Scruggs is still being investigated in the alleged attempted bribing of Hinds County Court Judge Bobby DeLaughter. According to court records, Scruggs used his influence with Lott to dangle the possibility of a federal judge appointment in front of DeLaughter if he ruled favorably in a lawsuit against Scruggs — Wilson v. Scruggs. Attorney Joey Langston has been indicted in that case and has pleaded guilty. He is awaiting sentencing. No other charges have been filed in that case thus far.
Saturday, June 28, 2008
Federal Judge Bribery Scheme Gets Lawyer 5 Years
High-Profile Attorney Gets 5 Years For Judicial Bribery Scheme
New York Lawyer by Holbrook Mohr, Associated Press Writer - June 27, 2008
OXFORD, Miss. - Richard "Dickie" Scruggs, the attorney who built his career by taking on tobacco, asbestos and insurance companies, was sentenced Friday to five years in prison for conspiring to bribe a judge. U.S. District Judge Neal Biggers Jr. called Scruggs' conduct "reprehensible" and fined him $250,000. The judge handed down the full sentence requested by prosecutors despite arguments from the defense for half that time in prison. Scruggs appeared to nearly faint as the federal judge scolded him for his conduct. Some people in the courtroom gasped as Scruggs started to sway side to side and his attorney grabbed his arm to steady him. He had to be seated before the sentence was read. "I could not be more ashamed where I am today, mixed up in a judicial bribery scheme," Scruggs told the judge. Scruggs must report to prison by Aug. 4 and pay the fine in one lump sum within 30 days. Scruggs gained fame in the 1990s by using a corporate insider against tobacco companies in lawsuits that resulted in a $206 billion settlement. That case was portrayed in the 1999 film "The Insider."
Scruggs was indicted in November along with his son and a law partner after an associate wore a wire for the FBI and secretly recorded conversations about the alleged bribery. Scruggs initially denied wrongdoing. But in March, Scruggs and former law partner Sidney Backstrom pleaded guilty to conspiring to bribe Lafayette County Circuit Court Judge Henry Lackey with $50,000. Prosecutors say Scruggs wanted a favorable ruling in a dispute over $26.5 million in legal fees from a mass settlement of Hurricane Katrina insurance cases. Scruggs' son, Zach Scruggs, pleaded guilty to misprision of a felony, meaning he knew a crime was committed but didn't report it. He is to be sentenced next week. Many high-profile friends had sought leniency for Scruggs in letters to the federal judge, including Former "60 Minutes" producer Lowell Bergman and tobacco industry whistleblower Jeffrey Wigand, both portrayed in "The Insider."
New York Lawyer by Holbrook Mohr, Associated Press Writer - June 27, 2008
OXFORD, Miss. - Richard "Dickie" Scruggs, the attorney who built his career by taking on tobacco, asbestos and insurance companies, was sentenced Friday to five years in prison for conspiring to bribe a judge. U.S. District Judge Neal Biggers Jr. called Scruggs' conduct "reprehensible" and fined him $250,000. The judge handed down the full sentence requested by prosecutors despite arguments from the defense for half that time in prison. Scruggs appeared to nearly faint as the federal judge scolded him for his conduct. Some people in the courtroom gasped as Scruggs started to sway side to side and his attorney grabbed his arm to steady him. He had to be seated before the sentence was read. "I could not be more ashamed where I am today, mixed up in a judicial bribery scheme," Scruggs told the judge. Scruggs must report to prison by Aug. 4 and pay the fine in one lump sum within 30 days. Scruggs gained fame in the 1990s by using a corporate insider against tobacco companies in lawsuits that resulted in a $206 billion settlement. That case was portrayed in the 1999 film "The Insider."
Scruggs was indicted in November along with his son and a law partner after an associate wore a wire for the FBI and secretly recorded conversations about the alleged bribery. Scruggs initially denied wrongdoing. But in March, Scruggs and former law partner Sidney Backstrom pleaded guilty to conspiring to bribe Lafayette County Circuit Court Judge Henry Lackey with $50,000. Prosecutors say Scruggs wanted a favorable ruling in a dispute over $26.5 million in legal fees from a mass settlement of Hurricane Katrina insurance cases. Scruggs' son, Zach Scruggs, pleaded guilty to misprision of a felony, meaning he knew a crime was committed but didn't report it. He is to be sentenced next week. Many high-profile friends had sought leniency for Scruggs in letters to the federal judge, including Former "60 Minutes" producer Lowell Bergman and tobacco industry whistleblower Jeffrey Wigand, both portrayed in "The Insider."
Friday, June 27, 2008
Kaye Scholer Hit with Malpractice Suit
Suit Against Kaye Scholer Alleges Discovery Foul-ups
The New York Law Journal by Anthony Lin - June 27, 2008
Kaye Scholer has been hit with a legal malpractice suit by a former client that claims the New York law firm's discovery mistakes forced it to enter into a $107 million antitrust settlement. Dallas-based chemical and plastics giant Celanese Corp. announced June 13 it was paying that amount to resolve multi-district litigation brought in federal court in North Carolina by several textile manufacturers that had accused the company of fixing prices in the market for polyester staple fibers. Kaye Scholer had represented Celanese in the disputes from March 2002 to July 2006. In a 33-page amended complaint filed Wednesday in the U.S. District Court for the Northern District of Texas, Celanese said it only paid such a large settlement because Kaye Scholer's failure to turn over hundreds of thousands of documents to the plaintiffs had exposed Celanese to draconian trial sanctions. "The negligence and malpractice of Kaye Scholer and the consequences of that negligence caused the chances of Celanese's prevailing at trial to decrease dramatically," the company said.
Celanese originally filed its complaint in Texas state court but the suit was removed to federal court. In addition to the firm itself, Celanese also names as individual defendants Kaye Scholer partner and executive committee member Michael D. Blechman and former special counsel Robert B. Bernstein. Celanese claims it would have only paid a nuisance settlement without the threat of sanctions but for Kaye Scholer's errors. It is asking in damages the difference between that nominal amount and the $107 million it paid. A spokesman for Kaye Scholer declined comment yesterday, citing a firm policy against discussing active litigation. However, the firm filed its own lawsuit against Celanese last week, seeking alleged unpaid legal fees as well as a declaratory judgment that Kaye Scholer's work met professional standards. "There is a bona fide dispute and actual controversy among the parties concerning the extent to which Kaye Scholer's legal services to the Celanese Entities were in accordance with the standards of care ordinarily provided by professionals providing legal representation and consistent with any fiduciary duty owed to the Celanese Entities," the firm said in its complaint.
Celanese claims that it and another of its law firms, Baker Botts, advised Kayer Scholer of the existence of 20,000 boxes of documents in a facility in Hillside, N.J., possibly relating to the polyester staple fiber market. Kaye Scholer lawyers, the complaint says, were also aware of responsive documents contained in a 3,000-roll microfilm archive, as well as additional responsive documents stored in North Carolina, Virginia and Mexico. But, according to the suit, Kaye Scholer only produced 220 pages of documents in response to the antitrust plaintiffs' document requests, repeatedly representing that those were the only relevant documents in Celanese's possession. At a June 6, 2006, hearing, the judge overseeing the antitrust case, Judge Richard L. Voorhees of the U.S. District Court for the Western District of North Carolina, took Celanese to task for "the trove of documents it held in the wings just out of sight" and said the company had been playing "cat and mouse" with the court and plaintiffs. According to malpractice suit, Judge Voorhees sanctioned Celanese $114,000 in fees and expenses, and said he would consider further sanctions on evaluating the impact of the discovery misconduct.
The judge also reserved ruling on an October 2006 sanctions motion by plaintiffs asking for a range of findings against Celanese, including that the company acted in bad faith that an adverse inference should be drawn against it on key issues and that the company should be prevented from presenting evidence on certain issues. Celanese said in its suit that the prospect of such sanctions, which would have severely hampered its ability to defend itself at trial, forced it to enter into a settlement in May. The company fired Kaye Scholer in July 2006 and hired Hector Torres of Kasowitz, Benson, Torres & Friedman to continue to represent it. The Kasowitz firm is also representing Celanese in its suit against Kaye Scholer. Trial sanctions over discovery foul-ups have been a major area of concerns for litigants and their lawyers in recent years. A sanction instructing a jury to draw an adverse inference led to a $1.6 billion verdict against Morgan Stanley in a high-profile suit in Florida state court. But that award was later overturned on appeal. - Anthony Lin can be reached at alin@alm.com.
The New York Law Journal by Anthony Lin - June 27, 2008
Kaye Scholer has been hit with a legal malpractice suit by a former client that claims the New York law firm's discovery mistakes forced it to enter into a $107 million antitrust settlement. Dallas-based chemical and plastics giant Celanese Corp. announced June 13 it was paying that amount to resolve multi-district litigation brought in federal court in North Carolina by several textile manufacturers that had accused the company of fixing prices in the market for polyester staple fibers. Kaye Scholer had represented Celanese in the disputes from March 2002 to July 2006. In a 33-page amended complaint filed Wednesday in the U.S. District Court for the Northern District of Texas, Celanese said it only paid such a large settlement because Kaye Scholer's failure to turn over hundreds of thousands of documents to the plaintiffs had exposed Celanese to draconian trial sanctions. "The negligence and malpractice of Kaye Scholer and the consequences of that negligence caused the chances of Celanese's prevailing at trial to decrease dramatically," the company said.
Celanese originally filed its complaint in Texas state court but the suit was removed to federal court. In addition to the firm itself, Celanese also names as individual defendants Kaye Scholer partner and executive committee member Michael D. Blechman and former special counsel Robert B. Bernstein. Celanese claims it would have only paid a nuisance settlement without the threat of sanctions but for Kaye Scholer's errors. It is asking in damages the difference between that nominal amount and the $107 million it paid. A spokesman for Kaye Scholer declined comment yesterday, citing a firm policy against discussing active litigation. However, the firm filed its own lawsuit against Celanese last week, seeking alleged unpaid legal fees as well as a declaratory judgment that Kaye Scholer's work met professional standards. "There is a bona fide dispute and actual controversy among the parties concerning the extent to which Kaye Scholer's legal services to the Celanese Entities were in accordance with the standards of care ordinarily provided by professionals providing legal representation and consistent with any fiduciary duty owed to the Celanese Entities," the firm said in its complaint.
Celanese claims that it and another of its law firms, Baker Botts, advised Kayer Scholer of the existence of 20,000 boxes of documents in a facility in Hillside, N.J., possibly relating to the polyester staple fiber market. Kaye Scholer lawyers, the complaint says, were also aware of responsive documents contained in a 3,000-roll microfilm archive, as well as additional responsive documents stored in North Carolina, Virginia and Mexico. But, according to the suit, Kaye Scholer only produced 220 pages of documents in response to the antitrust plaintiffs' document requests, repeatedly representing that those were the only relevant documents in Celanese's possession. At a June 6, 2006, hearing, the judge overseeing the antitrust case, Judge Richard L. Voorhees of the U.S. District Court for the Western District of North Carolina, took Celanese to task for "the trove of documents it held in the wings just out of sight" and said the company had been playing "cat and mouse" with the court and plaintiffs. According to malpractice suit, Judge Voorhees sanctioned Celanese $114,000 in fees and expenses, and said he would consider further sanctions on evaluating the impact of the discovery misconduct.
The judge also reserved ruling on an October 2006 sanctions motion by plaintiffs asking for a range of findings against Celanese, including that the company acted in bad faith that an adverse inference should be drawn against it on key issues and that the company should be prevented from presenting evidence on certain issues. Celanese said in its suit that the prospect of such sanctions, which would have severely hampered its ability to defend itself at trial, forced it to enter into a settlement in May. The company fired Kaye Scholer in July 2006 and hired Hector Torres of Kasowitz, Benson, Torres & Friedman to continue to represent it. The Kasowitz firm is also representing Celanese in its suit against Kaye Scholer. Trial sanctions over discovery foul-ups have been a major area of concerns for litigants and their lawyers in recent years. A sanction instructing a jury to draw an adverse inference led to a $1.6 billion verdict against Morgan Stanley in a high-profile suit in Florida state court. But that award was later overturned on appeal. - Anthony Lin can be reached at alin@alm.com.
Thursday, June 26, 2008
Complaints Against New York Judges Reach a High
Complaints Against New York Judges Reach a High, but Fewer Merit Investigations
The New York Times by JOHN ELIGON - June 26, 2008
A record number of complaints were filed against New York State judges in 2007, according to a report by the State Commission on Judicial Conduct. But the number of complaints that warranted a full investigation during that time was lower than it had been in a decade, the report said.
The commission, which has been collecting grievances since 1975, submitted the report to the State Legislature last month. It encompasses all of the state’s roughly 3,500 judges, including Supreme Court justices, city and county court judges, and justices in villages and towns. There were 1,711 complaints filed against judges last year, the report said. That number is up from the previous high over the past decade: 1,565 complaints in 2005. Nearly 1,300 of the 2007 complaints were found to have no basis and were dismissed almost immediately, while more than 400 others were sent on for preliminary inquiries. The commission found 192 of the complaints to be potentially valid and sent them on for full-fledged inquiries. The last time that fewer than 200 complaints were sent on for full investigation was in 1997, when there were 172.
“I think that the fact that there is less substantiated wrongdoing shows that the judges are doing an outstanding job,” said David Bookstaver, a spokesman for the Office of the Court Administration. Five judges were removed last year, 10 were censured and 9 admonished. But some of those punishments were the result of complaints pending prior to 2007. The record number of complaints was more indicative of the public’s increased awareness of the commission’s duties, not the performance of judges, said Robert H. Tembeckjian, the administrator of the agency. Mr. Tembeckjian cited several reasons for the commission’s increased exposure, including wider use of the Internet and reports in the news media.
He cited a series in The New York Times in 2006 that found a long history of judicial misconduct and poor training in small-town courts in New York. Mr. Tembeckjian also mentioned several instances of judicial misconduct that were widely publicized. Last November, Robert M. Restaino, a judge on the Niagara Falls City Court, was removed for sending 46 defendants who sat in his courtroom into police custody after no one took responsibility for a cellphone that rang in the courtroom. Mr. Tembeckjian said he received media inquiries in that case from around the globe. As people see the commission acting on judicial misconduct, Mr. Tembeckjian said, they become more inclined to file complaints.
“As the public and civic organizations and lawyers become more confident and satisfied that the commission will seriously treat their complaints,” Mr. Tembeckjian said, “there tends to be more public confidence in the commission’s discharge of its responsibilities.” In more than half the cases last year — 941 — the complaints were about a judge’s decision. Those complaints were immediately dismissed because that is an issue for an appellate court, Mr. Tembeckjian said. A judge’s demeanor drew the second most number of complaints last year with 235, the report said. The subject of other complaints include claims of delays, conflicts of interest, bias, corruption and intoxication.
The New York Times by JOHN ELIGON - June 26, 2008
A record number of complaints were filed against New York State judges in 2007, according to a report by the State Commission on Judicial Conduct. But the number of complaints that warranted a full investigation during that time was lower than it had been in a decade, the report said.
The commission, which has been collecting grievances since 1975, submitted the report to the State Legislature last month. It encompasses all of the state’s roughly 3,500 judges, including Supreme Court justices, city and county court judges, and justices in villages and towns. There were 1,711 complaints filed against judges last year, the report said. That number is up from the previous high over the past decade: 1,565 complaints in 2005. Nearly 1,300 of the 2007 complaints were found to have no basis and were dismissed almost immediately, while more than 400 others were sent on for preliminary inquiries. The commission found 192 of the complaints to be potentially valid and sent them on for full-fledged inquiries. The last time that fewer than 200 complaints were sent on for full investigation was in 1997, when there were 172.
“I think that the fact that there is less substantiated wrongdoing shows that the judges are doing an outstanding job,” said David Bookstaver, a spokesman for the Office of the Court Administration. Five judges were removed last year, 10 were censured and 9 admonished. But some of those punishments were the result of complaints pending prior to 2007. The record number of complaints was more indicative of the public’s increased awareness of the commission’s duties, not the performance of judges, said Robert H. Tembeckjian, the administrator of the agency. Mr. Tembeckjian cited several reasons for the commission’s increased exposure, including wider use of the Internet and reports in the news media.
He cited a series in The New York Times in 2006 that found a long history of judicial misconduct and poor training in small-town courts in New York. Mr. Tembeckjian also mentioned several instances of judicial misconduct that were widely publicized. Last November, Robert M. Restaino, a judge on the Niagara Falls City Court, was removed for sending 46 defendants who sat in his courtroom into police custody after no one took responsibility for a cellphone that rang in the courtroom. Mr. Tembeckjian said he received media inquiries in that case from around the globe. As people see the commission acting on judicial misconduct, Mr. Tembeckjian said, they become more inclined to file complaints.
“As the public and civic organizations and lawyers become more confident and satisfied that the commission will seriously treat their complaints,” Mr. Tembeckjian said, “there tends to be more public confidence in the commission’s discharge of its responsibilities.” In more than half the cases last year — 941 — the complaints were about a judge’s decision. Those complaints were immediately dismissed because that is an issue for an appellate court, Mr. Tembeckjian said. A judge’s demeanor drew the second most number of complaints last year with 235, the report said. The subject of other complaints include claims of delays, conflicts of interest, bias, corruption and intoxication.
Court Revives Malpractice Suit Against NY Firm
Court Revives Malpractice Suit Against NY Firm
The New York Law Journal by Anthony Lin - June 26, 2008
The Court of Appeals yesterday revived a legal malpractice suit against law firm Larossa, Mitchell & Ross over its representation of a personal injury lawyer found to have defrauded New York City by fabricating evidence in tort cases. The suit, which was previously dismissed because Larossa's ex-client was in dissolution, cannot now be barred on res judicata grounds against a successor firm, the court ruled. The case stems from the travails of the law firm Morris J. Eisen PC. Once one of the New York's top personal injury firms, the firm was accused by the city of falsifying evidence in a 1986 civil suit. Seven lawyers and investigators for the firm, including Morris J. Eisen, were subsequently targeted by federal prosecutors in Brooklyn and convicted on Racketeer Influenced and Corrupt Organizations Act charges in 1991. Mr. Eisen had been represented in the criminal case by James M. Larossa, and the Larossa firm also represented the Eisen firm in the civil suit by the city. Eisen first tried to bring a legal malpractice suit against Larossa after a court granted partial summary judgment to the city on its fraud claims. The city was awarded $2.1 million.
The suit claimed Larossa did not adequately oppose the city's summary judgment motion, failing to present evidence that would have shown that, notwithstanding any false testimony, the city was actually responsible for the injuries in the cases at issue. Eisen's complaint was dismissed in January 2000 on the grounds that the firm was a dissolved professional corporation for failure to pay its franchise taxes, and it lacked capacity to bring the suit. A successor firm, Landau, with Mr. Eisen as an assignee, filed an identical suit, but it was barred on res judicata grounds. The Court of Appeals reversed. In a decision written by Judge Carmen Beauchamp Ciparick, the Court said the dismissal without prejudice in Landau v. Larossa, Mitchell & Ross, 604476/01, "lacks a necessary element of res judicata - by its terms such a judgment is not a final determination on the merits." The Court noted that only the issues of Eisen and Landau's standing and capacity had thus far been litigated.
"We remain mindful that if applied too rigidly, res judicata has the potential to work considerable injustice," the Court said, adding that "Landau has yet to have its day in court to litigate the merits of its legal malpractice claim against defendants and we therefore find that res judicata is not applicable to plaintiff in this case." Mr. Eisen was represented in the appeal by John P. Coffey of Bernstein Litowitz Berger & Grossman, who said he was very pleased Mr. Eisen would get to litigate his claims after "many, many years." Larossa was represented by Nancy A. Breslow of Martin, Clearwater & Bell. The accusations and subsequent prosecution of Mr. Eisen was a major scandal in the legal community at the time. In one case, the personal injury lawyers put on one witness who was in jail at the time of the accident he apparently saw. They also once used a pickax to enlarge a pothole for a photograph to be used as a trial exhibit. But Mr. Coffey said yesterday that Mr. Eisen was found guilty for the actions of his underlings and noted that he was dropped as an individual defendant from the city suit.
The New York Law Journal by Anthony Lin - June 26, 2008
The Court of Appeals yesterday revived a legal malpractice suit against law firm Larossa, Mitchell & Ross over its representation of a personal injury lawyer found to have defrauded New York City by fabricating evidence in tort cases. The suit, which was previously dismissed because Larossa's ex-client was in dissolution, cannot now be barred on res judicata grounds against a successor firm, the court ruled. The case stems from the travails of the law firm Morris J. Eisen PC. Once one of the New York's top personal injury firms, the firm was accused by the city of falsifying evidence in a 1986 civil suit. Seven lawyers and investigators for the firm, including Morris J. Eisen, were subsequently targeted by federal prosecutors in Brooklyn and convicted on Racketeer Influenced and Corrupt Organizations Act charges in 1991. Mr. Eisen had been represented in the criminal case by James M. Larossa, and the Larossa firm also represented the Eisen firm in the civil suit by the city. Eisen first tried to bring a legal malpractice suit against Larossa after a court granted partial summary judgment to the city on its fraud claims. The city was awarded $2.1 million.
The suit claimed Larossa did not adequately oppose the city's summary judgment motion, failing to present evidence that would have shown that, notwithstanding any false testimony, the city was actually responsible for the injuries in the cases at issue. Eisen's complaint was dismissed in January 2000 on the grounds that the firm was a dissolved professional corporation for failure to pay its franchise taxes, and it lacked capacity to bring the suit. A successor firm, Landau, with Mr. Eisen as an assignee, filed an identical suit, but it was barred on res judicata grounds. The Court of Appeals reversed. In a decision written by Judge Carmen Beauchamp Ciparick, the Court said the dismissal without prejudice in Landau v. Larossa, Mitchell & Ross, 604476/01, "lacks a necessary element of res judicata - by its terms such a judgment is not a final determination on the merits." The Court noted that only the issues of Eisen and Landau's standing and capacity had thus far been litigated.
"We remain mindful that if applied too rigidly, res judicata has the potential to work considerable injustice," the Court said, adding that "Landau has yet to have its day in court to litigate the merits of its legal malpractice claim against defendants and we therefore find that res judicata is not applicable to plaintiff in this case." Mr. Eisen was represented in the appeal by John P. Coffey of Bernstein Litowitz Berger & Grossman, who said he was very pleased Mr. Eisen would get to litigate his claims after "many, many years." Larossa was represented by Nancy A. Breslow of Martin, Clearwater & Bell. The accusations and subsequent prosecution of Mr. Eisen was a major scandal in the legal community at the time. In one case, the personal injury lawyers put on one witness who was in jail at the time of the accident he apparently saw. They also once used a pickax to enlarge a pothole for a photograph to be used as a trial exhibit. But Mr. Coffey said yesterday that Mr. Eisen was found guilty for the actions of his underlings and noted that he was dropped as an individual defendant from the city suit.
Wednesday, June 25, 2008
Committee On Attorney Conduct Selects Chairman of Search Committee
Litigation Recovery Trust
515 Madison Avenue New York, NY 10022
Tel: 347-632-9775 email: lrtinformation@gmail.com
Fax: 801-926-9269 email: pcacinformation@gmail.com
PRESS RELEASE
For Immediate Release
Ad Hoc Public Committee On Attorney Conduct Selects John T. Whitely As Chairman of Executive Search Committee
PCAC Formed To Review Actions Of New York State Ethics Committees Moves to Recruit Members As First Step to Replace Existing Grievance Committee Structures
New York, NY - The Ad Hoc Public Committee On Attorney Conduct (PCAC) has announced the appointment of John T. Whitely as chairman of the PCAC Executive Search Committee. The PCAC was recently established by joint action of Litigation Recovery Trust, a New York based rights administration organization, and Integrity in the Courts and Expose Corrupt Courts, two Internet blogs focused on judicial and attorney disciplinary process and procedures. The objective of the new organization is to oversee New York State’s Attorney Disciplinary Committees. The Ad Hoc bar oversight committee is being headquartered in New York City.
In announcing the appointment of the search committee, William J. Hallenbeck, executive director of Litigation Recovery Trust, stated that efforts were being made to accelerate the establishment of the PCAC as a direct result of the continued filing of a growing number of federal lawsuits against the statewide attorney grievance committees and their parent organization, New York State Office of Court Administration. Mr. Hallenbeck noted, “As legal actions against the attorney disciplinary committees continue to multiply, it is clear that timing has now become a critical issue. We must move forward expeditiously to organize PCAC so that it can undertake a detailed review of the fatally flawed system, which allows attorneys in New York to oversee, protect and cover-up the unethical and often illegal conduct of their fellow lawyers.”
Mr. Hallenbeck continued, “ A former long time executive vice president of Grace & Company, and president - CEO of Amerace and Federation Chemical, both New York Stock Exchange registered companies, Jack Whitely brings decades of practical, high-level executive experience to the task of organizing the PCAC organization.” Mr. Whitely is a graduate of Notre Dame University and its law school.
In accepting the appointment, Mr. Whitely noted, “The well documented complaints of malpractice, personal attacks and even theft that have recently been filed with the federal courts against grievance committee executive staff, and individual lawyers allegedly shielded by the disciplinary committee process, reflects a system totally out of control and beyond repair. I look forward to assisting PCAC to speed the establishment of a new structure under which the public will become the controlling part of the lawyer oversight process.”
Expose Corrupt Courts blog issued the following statement: “We are gratified that Jack Whitely has agreed to assist with recruitment of PCAC members. What is sought is a committee made up of members with broad and diverse business experience and expertise, as well as impeccable records of fairness and sound judgment to review breaches of attorney ethics and past rulings which can be classified as highly suspect.”
Under the plan put forth by LRT, Integrity in the Courts. and Expose Corrupt Courts, the newly formed Public Committee On Attorney Conduct will review both past and present cases brought before the grievance committees to provide an independent review and analysis of the facts, and issue proposed findings. With respect to past cases, the committee will be particularly interested in hearing from persons who maintain that they have been treated unfairly and unjustly by the disciplinary committees. As part of its initial efforts, the new committee will actively seek documentation of all complaints against any attorneys dating to January 1, 1988.
According to the founding organizations, the Public Committee On Attorney Conduct will include as members individuals, who through their personal and professional lives have established a reputation of responsibility and fairness. While attorneys will be available to the PCAC as advisers, all voting members issuing formal reports and decisions will be non attorneys.
In commenting on the structure of the ad hoc committee, Mr. Hallenbeck noted that this will be the first time in the United States that a review body made up entirely of non attorneys will be assembled to investigate and practicing lawyers. He added, “By initially establishing a parallel committee structure to the New York State grievance committees, we will have the opportunity to determine that a bar review process made up entirely of non attorneys can achieve the desired result. We should make it clear that our immediate goal here is to create a practical, working model to replace the attorney grievance committees.”
Mr. Hallenbeck also reported that since news of the formation of the PCAC was first made public on June 17, individual complainants have begun submitting requests to PCAC to review both past and current matters before the New York State grievance committees. Requests and documents are being received by PCAC at its email address: pcacinformation @gmail.com. Telephone inquiries can be directed to 347-632-9775 .For additional information, contact the PCAC website at www.pcac.8k.com.
#### 30 ####
For additional information please contact:
515 Madison Avenue New York, NY 10022
Tel: 347-632-9775 email: lrtinformation@gmail.com
Fax: 801-926-9269 email: pcacinformation@gmail.com
PRESS RELEASE
For Immediate Release
Ad Hoc Public Committee On Attorney Conduct Selects John T. Whitely As Chairman of Executive Search Committee
PCAC Formed To Review Actions Of New York State Ethics Committees Moves to Recruit Members As First Step to Replace Existing Grievance Committee Structures
New York, NY - The Ad Hoc Public Committee On Attorney Conduct (PCAC) has announced the appointment of John T. Whitely as chairman of the PCAC Executive Search Committee. The PCAC was recently established by joint action of Litigation Recovery Trust, a New York based rights administration organization, and Integrity in the Courts and Expose Corrupt Courts, two Internet blogs focused on judicial and attorney disciplinary process and procedures. The objective of the new organization is to oversee New York State’s Attorney Disciplinary Committees. The Ad Hoc bar oversight committee is being headquartered in New York City.
In announcing the appointment of the search committee, William J. Hallenbeck, executive director of Litigation Recovery Trust, stated that efforts were being made to accelerate the establishment of the PCAC as a direct result of the continued filing of a growing number of federal lawsuits against the statewide attorney grievance committees and their parent organization, New York State Office of Court Administration. Mr. Hallenbeck noted, “As legal actions against the attorney disciplinary committees continue to multiply, it is clear that timing has now become a critical issue. We must move forward expeditiously to organize PCAC so that it can undertake a detailed review of the fatally flawed system, which allows attorneys in New York to oversee, protect and cover-up the unethical and often illegal conduct of their fellow lawyers.”
Mr. Hallenbeck continued, “ A former long time executive vice president of Grace & Company, and president - CEO of Amerace and Federation Chemical, both New York Stock Exchange registered companies, Jack Whitely brings decades of practical, high-level executive experience to the task of organizing the PCAC organization.” Mr. Whitely is a graduate of Notre Dame University and its law school.
In accepting the appointment, Mr. Whitely noted, “The well documented complaints of malpractice, personal attacks and even theft that have recently been filed with the federal courts against grievance committee executive staff, and individual lawyers allegedly shielded by the disciplinary committee process, reflects a system totally out of control and beyond repair. I look forward to assisting PCAC to speed the establishment of a new structure under which the public will become the controlling part of the lawyer oversight process.”
Expose Corrupt Courts blog issued the following statement: “We are gratified that Jack Whitely has agreed to assist with recruitment of PCAC members. What is sought is a committee made up of members with broad and diverse business experience and expertise, as well as impeccable records of fairness and sound judgment to review breaches of attorney ethics and past rulings which can be classified as highly suspect.”
Under the plan put forth by LRT, Integrity in the Courts. and Expose Corrupt Courts, the newly formed Public Committee On Attorney Conduct will review both past and present cases brought before the grievance committees to provide an independent review and analysis of the facts, and issue proposed findings. With respect to past cases, the committee will be particularly interested in hearing from persons who maintain that they have been treated unfairly and unjustly by the disciplinary committees. As part of its initial efforts, the new committee will actively seek documentation of all complaints against any attorneys dating to January 1, 1988.
According to the founding organizations, the Public Committee On Attorney Conduct will include as members individuals, who through their personal and professional lives have established a reputation of responsibility and fairness. While attorneys will be available to the PCAC as advisers, all voting members issuing formal reports and decisions will be non attorneys.
In commenting on the structure of the ad hoc committee, Mr. Hallenbeck noted that this will be the first time in the United States that a review body made up entirely of non attorneys will be assembled to investigate and practicing lawyers. He added, “By initially establishing a parallel committee structure to the New York State grievance committees, we will have the opportunity to determine that a bar review process made up entirely of non attorneys can achieve the desired result. We should make it clear that our immediate goal here is to create a practical, working model to replace the attorney grievance committees.”
Mr. Hallenbeck also reported that since news of the formation of the PCAC was first made public on June 17, individual complainants have begun submitting requests to PCAC to review both past and current matters before the New York State grievance committees. Requests and documents are being received by PCAC at its email address: pcacinformation @gmail.com. Telephone inquiries can be directed to 347-632-9775 .For additional information, contact the PCAC website at www.pcac.8k.com.
#### 30 ####
For additional information please contact:
William J. Hollenbeck
Executive Director
Litigation Recovery Trust
515 Madison Avenue
New York, New York 10022
Telephone 6462019269
E-mail: lrtinformation@gmail.com
Web: litigationrecoverytrust.8k.com
Frank Brady
www.IntegrityintheCourts.wordpress.com
Email: integrityinthecourts@gmail.com
Expose Corrupt Courts
Email:corruptcourt@gmail.com
Web: www.exposecorruptcourts.blogspot.com
PCAC membership inquiries should be directed to:
John T. Whitely
Chairman Executive Search Committee
Public Committee on Attorney Conduct
515 Madison Avenue
New York, New York 10022
Telephone 347-632-9775 E-mail: pcacinformation@gmail.com
Web: pcac.8k.com
About Litigation Recovery Trust
Founded in 1995, Litigation Recovery Trust is a New York based claims and rights administration organization. LRT pursues claims and causes of action worldwide, and processes single and group litigation claims, as well as general rights fees and awards. LRT also participates in legislative and administrative initiatives designed to protect or advance individual claims and rights.
About Integrity in the Courts Blog
Integrity in the Courts is a daily blog, which focuses on ethical and legal issues related to the administration of justice nationwide. Issues impacting both the judiciary and the bar are investigated, including compliance with a codes of judicial conduct, the codes of professional responsibility. Violations of law and failure to abide by codes of conduct are monitored, together with actions leading to disciplinary rulings, including admonishment, reprimand, censure, suspension or loss of licenses to practice law.
About Expose Corrupt Courts
Since beginning publication in March 2007, Expose Corrupt Courts has become one of the leading sources of both public and inside information concerning bench and bar misconduct. While the blog focuses primary attention on the court system of New York State, it regularly covers stories of interest throughout the U.S. Expose Corrupt Courts has led coverage of the massive corruption charges that have been filed against the attorney grievance committees in New York that have resulted in the filing of over a dozen law suits with the federal district court in Manhattan.
Executive Director
Litigation Recovery Trust
515 Madison Avenue
New York, New York 10022
Telephone 6462019269
E-mail: lrtinformation@gmail.com
Web: litigationrecoverytrust.8k.com
Frank Brady
www.IntegrityintheCourts.wordpress.com
Email: integrityinthecourts@gmail.com
Expose Corrupt Courts
Email:corruptcourt@gmail.com
Web: www.exposecorruptcourts.blogspot.com
PCAC membership inquiries should be directed to:
John T. Whitely
Chairman Executive Search Committee
Public Committee on Attorney Conduct
515 Madison Avenue
New York, New York 10022
Telephone 347-632-9775 E-mail: pcacinformation@gmail.com
Web: pcac.8k.com
About Litigation Recovery Trust
Founded in 1995, Litigation Recovery Trust is a New York based claims and rights administration organization. LRT pursues claims and causes of action worldwide, and processes single and group litigation claims, as well as general rights fees and awards. LRT also participates in legislative and administrative initiatives designed to protect or advance individual claims and rights.
About Integrity in the Courts Blog
Integrity in the Courts is a daily blog, which focuses on ethical and legal issues related to the administration of justice nationwide. Issues impacting both the judiciary and the bar are investigated, including compliance with a codes of judicial conduct, the codes of professional responsibility. Violations of law and failure to abide by codes of conduct are monitored, together with actions leading to disciplinary rulings, including admonishment, reprimand, censure, suspension or loss of licenses to practice law.
About Expose Corrupt Courts
Since beginning publication in March 2007, Expose Corrupt Courts has become one of the leading sources of both public and inside information concerning bench and bar misconduct. While the blog focuses primary attention on the court system of New York State, it regularly covers stories of interest throughout the U.S. Expose Corrupt Courts has led coverage of the massive corruption charges that have been filed against the attorney grievance committees in New York that have resulted in the filing of over a dozen law suits with the federal district court in Manhattan.
The Wall Street Journal: Checks and Judicial Balances
Checks and Judicial Balances
The Wall Street Journal - June 14, 2008 - Page A10
Here's a weekend daydream: What if on Monday, you walked into work and gave yourself a raise? That's what happened in New York this week, when a state judge ordered the Governor and state legislature to pony up bigger paychecks for him and the rest of his judicial friends. It's the perfect plan – if only it weren't for that inconvenient detail about separation of powers. The ruling, by New York Supreme Court Justice Edward Lehner, commands the state Senate and Assembly to pass a pay raise for judges in the next 90 days – and make some provision to retroactively compensate them for the lean years. The four plaintiffs in the suit suggested $600,000 each would do the trick. Multiplied out for the entire New York Judiciary, that would put New York taxpayers on the line for $700 million.
New York Governor David Paterson was unamused. Only the state legislature has the power to set judicial salaries, his office rightly pointed out in a statement. The judge's decision "flies in the face of the state constitution." There's more where that came from. Still pending before Judge Lehner is a separate suit brought by New York State Chief Judge Judith Kaye, who has retained New York attorney Bernard Nussbaum to sue the Governor and legislature for a raise for all 3,000 New York judges. Judge Lehner will thus be expected to rule in a case in which he is effectively a plaintiff, and in which he is also judging a complaint by his judicial superior.
The suits are necessary, say the judges, because legislators will raise their salaries only when they also raise their own, a fact which has left paychecks unaltered for a decade. That, in Judge Lehner's words, represents an "unconstitutional interference upon the independence of the judiciary." After a decade of inflation, judges say their salaries have been effectively cut – something which is prohibited by law. At those rates, they say they now make less than what's pocketed by first-year associates at big law firms. But few would consider their salaries fodder for Oliver Twist. Chief Judge Kaye makes the most, at $156,000 a year, while others earn about $136,700. By comparison, Members of the U.S. Congress now make $169,300 a year. A memorandum of law filed on behalf of Governor Paterson and state Assembly Speaker Sheldon Silver in Judge Kaye's case notes that judges are already extremely well paid relative to the state workforce.
We have some sympathy for the judges, most of whom could make far more in private life. But then they also have extended tenure. To attract better people to the bench, we'd be willing to swap higher pay for term limits. New York judges may have a legitimate complaint about salary erosion, but they are exceeding their own legal authority by asserting the right to overrule the elected branches and set their own pay – about as basic a legislative function as one can imagine. Most judges choose their robes not for the salary but for the honor and significant authority, and, dare we say, the chance to serve the public. The hours are good, the work is interesting and they don't suffer the indignities of work life that are routine for the first-year associates whose salaries trump theirs. That, as they say, is priceless.
The Wall Street Journal - June 14, 2008 - Page A10
Here's a weekend daydream: What if on Monday, you walked into work and gave yourself a raise? That's what happened in New York this week, when a state judge ordered the Governor and state legislature to pony up bigger paychecks for him and the rest of his judicial friends. It's the perfect plan – if only it weren't for that inconvenient detail about separation of powers. The ruling, by New York Supreme Court Justice Edward Lehner, commands the state Senate and Assembly to pass a pay raise for judges in the next 90 days – and make some provision to retroactively compensate them for the lean years. The four plaintiffs in the suit suggested $600,000 each would do the trick. Multiplied out for the entire New York Judiciary, that would put New York taxpayers on the line for $700 million.
New York Governor David Paterson was unamused. Only the state legislature has the power to set judicial salaries, his office rightly pointed out in a statement. The judge's decision "flies in the face of the state constitution." There's more where that came from. Still pending before Judge Lehner is a separate suit brought by New York State Chief Judge Judith Kaye, who has retained New York attorney Bernard Nussbaum to sue the Governor and legislature for a raise for all 3,000 New York judges. Judge Lehner will thus be expected to rule in a case in which he is effectively a plaintiff, and in which he is also judging a complaint by his judicial superior.
The suits are necessary, say the judges, because legislators will raise their salaries only when they also raise their own, a fact which has left paychecks unaltered for a decade. That, in Judge Lehner's words, represents an "unconstitutional interference upon the independence of the judiciary." After a decade of inflation, judges say their salaries have been effectively cut – something which is prohibited by law. At those rates, they say they now make less than what's pocketed by first-year associates at big law firms. But few would consider their salaries fodder for Oliver Twist. Chief Judge Kaye makes the most, at $156,000 a year, while others earn about $136,700. By comparison, Members of the U.S. Congress now make $169,300 a year. A memorandum of law filed on behalf of Governor Paterson and state Assembly Speaker Sheldon Silver in Judge Kaye's case notes that judges are already extremely well paid relative to the state workforce.
We have some sympathy for the judges, most of whom could make far more in private life. But then they also have extended tenure. To attract better people to the bench, we'd be willing to swap higher pay for term limits. New York judges may have a legitimate complaint about salary erosion, but they are exceeding their own legal authority by asserting the right to overrule the elected branches and set their own pay – about as basic a legislative function as one can imagine. Most judges choose their robes not for the salary but for the honor and significant authority, and, dare we say, the chance to serve the public. The hours are good, the work is interesting and they don't suffer the indignities of work life that are routine for the first-year associates whose salaries trump theirs. That, as they say, is priceless.
Tuesday, June 24, 2008
AP: Lawyers Were Greedy, Alcoholic or Simple-Minded...
Lawyers Were Greedy, Alcoholic or Simple-Minded, Depending on Who's Talking
The Associated Press (New York Lawyer) by Brett Barrouquere - June 24, 2008
Three lawyers accused of defrauding their clients in a $200 million diet drug settlement were greedy, a prosecutor charged Monday during closing arguments of the high-profile trial. But a defense attorney said the attorneys did not commit any crime. U.S. Attorney Laura Voorhees told jurors in Covington, Ky., on Monday morning that the three lawyers were motivated by greed. She said the lawyers should have been paid $60 million to settle a lawsuit over the diet drug fen-phen, but walked away with $127 million. "But $60 million wasn't enough. Think of it, ladies and gentlemen, the audacity of these attorneys," Voorhees said. Attorneys Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. are being tried on charges of wire fraud conspiracy. If convicted, they could receive up to 20 years in prison. Defense attorneys told jurors Monday afternoon that their clients did not commit any crimes. Jim Shuffett, who represents Mills, said his client was "a severe alcoholic" and that made him unable to think rationally.
"If these other two gentlemen had been intending to steal $65 million, they would have not have included a bad alcoholic," Shuffett said. "That's insane." Shuffett described Gallion, Cunningham and Mills as personal injury lawyers who may not have been able to grasp the complexities of the class action settlement. "I don't think they've figured out how to read that settlement agreement yet," Shuffett said. "It's too complicated." Stephen Dobson, who represents Cunningham, sought to minimize his client's role in the settlement and anything that may have gone wrong. "Mr. Cunningham gave no instructions, no directions," Dobson said. Dobson said Cunningham lacked criminal intent, a key ingredient in proving fraud charges. O. Hale Almand, who represents Gallion, said his client documented every step to ensure the settlement was handled properly. Almand also attacked one of the witnesses, Stanley Chesley.
The three defendants hired Chesley, a class action specialist from Cincinnati, to reach a settlement with American Home Products, the maker of the diet drug. Chesley, who received immunity from prosecution, testified earlier at trial that he did nothing wrong. He also had said he had found the handling of parts of the settlement unusual. Jurors are expected to return Tuesday morning to receive final instructions and begin deliberations in the six-week-long trial. The case has been closely followed in Kentucky and the horse racing industry because Gallion and Cunningham are part-owners of 2007's Horse of the Year, Curlin.
The Associated Press (New York Lawyer) by Brett Barrouquere - June 24, 2008
Three lawyers accused of defrauding their clients in a $200 million diet drug settlement were greedy, a prosecutor charged Monday during closing arguments of the high-profile trial. But a defense attorney said the attorneys did not commit any crime. U.S. Attorney Laura Voorhees told jurors in Covington, Ky., on Monday morning that the three lawyers were motivated by greed. She said the lawyers should have been paid $60 million to settle a lawsuit over the diet drug fen-phen, but walked away with $127 million. "But $60 million wasn't enough. Think of it, ladies and gentlemen, the audacity of these attorneys," Voorhees said. Attorneys Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. are being tried on charges of wire fraud conspiracy. If convicted, they could receive up to 20 years in prison. Defense attorneys told jurors Monday afternoon that their clients did not commit any crimes. Jim Shuffett, who represents Mills, said his client was "a severe alcoholic" and that made him unable to think rationally.
"If these other two gentlemen had been intending to steal $65 million, they would have not have included a bad alcoholic," Shuffett said. "That's insane." Shuffett described Gallion, Cunningham and Mills as personal injury lawyers who may not have been able to grasp the complexities of the class action settlement. "I don't think they've figured out how to read that settlement agreement yet," Shuffett said. "It's too complicated." Stephen Dobson, who represents Cunningham, sought to minimize his client's role in the settlement and anything that may have gone wrong. "Mr. Cunningham gave no instructions, no directions," Dobson said. Dobson said Cunningham lacked criminal intent, a key ingredient in proving fraud charges. O. Hale Almand, who represents Gallion, said his client documented every step to ensure the settlement was handled properly. Almand also attacked one of the witnesses, Stanley Chesley.
The three defendants hired Chesley, a class action specialist from Cincinnati, to reach a settlement with American Home Products, the maker of the diet drug. Chesley, who received immunity from prosecution, testified earlier at trial that he did nothing wrong. He also had said he had found the handling of parts of the settlement unusual. Jurors are expected to return Tuesday morning to receive final instructions and begin deliberations in the six-week-long trial. The case has been closely followed in Kentucky and the horse racing industry because Gallion and Cunningham are part-owners of 2007's Horse of the Year, Curlin.
Monday, June 23, 2008
Manhattan Prosecutor's Shocker
PROSECUTOR'S SHOCKER: I THREW MURDER CASE
The New York Post by LAURA ITALIANO - June 23, 2008
A former Manhattan prosecutor threw a murder case because he was convinced the two defendants were innocent, he told The Post last night. Daniel Bibb shockingly admitted that in 2005, while he was an assistant Manhattan DA, he not only tried to lose his case against David Lemus and Olmedo Hidalgo - he actually helped their lawyers find witnesses and plot strategy. "I would hope that any lawyer faced with the dilemma that I was in would do exactly what I had done - seeking justice instead of just walking in lockstep to defend convictions that I didn't believe in," he said. The two men were convicted in 1992 of the Nov. 23, 1990, murder of bouncer Marcus Peterson outside the Palladium nightclub on East 14th Street. But in 2003, a Bronx drug dealer admitted to the slaying, and District Attorney Robert Morgenthau assigned Bibb to participate in a reinvestigation. After a 21-month probe, a judge granted a defense request for a hearing on the new evidence Bibb, now 53, said he was asked to represent the DA's office at the 2005 hearing, despite the fact that he had urged his bosses to drop the convictions.
The longtime assistant prosecutor didn't bow out of the case - explaining that he feared his replacement might actually win a second conviction. Instead, he said, he helped the defense lawyers locate witnesses, and even critiqued their cross-examination. He admitted he "did the best" he could to lose. His strategy was successful. A judge granted Lemus a new trial - at which he was acquitted - and prosecutors dropped Hidalgo's conviction. Bibb stayed with the case until just before he submitted final written arguments. Then he left the DA's office a few months later - to become a defense lawyer. Asked why he didn't walk out of the DA's office until the very end, he said, "Try quitting a job when you have three kids and a mortgage."
The Palladium case had become a political hot potato, and Morgenthau was facing a tough re-election fight in 2005. Lemus and Hidalgo originally had been convicted based on eyewitness testimony. But both men insisted crucial evidence had been withheld, and repeatedly appealed their convictions. When asked by The Post just before the 2005 election if his office was keeping innocent men in prison, Morgenthau replied, "There were four eyewitnesses to the shooting. The case was tried before a jury, and the jury convicted." But after the new evidence emerged, he said, "We thought it was appropriate to have a hearing," and added, "It was a thorough, professional job done by our office." A spokesperson for the Manhattan DA's Office could not immediately be reached for comment on Bibb's admission. Additional reporting by Ed Robinson and Lucas Alpert laura.italiano@nypost.com
The New York Post by LAURA ITALIANO - June 23, 2008
A former Manhattan prosecutor threw a murder case because he was convinced the two defendants were innocent, he told The Post last night. Daniel Bibb shockingly admitted that in 2005, while he was an assistant Manhattan DA, he not only tried to lose his case against David Lemus and Olmedo Hidalgo - he actually helped their lawyers find witnesses and plot strategy. "I would hope that any lawyer faced with the dilemma that I was in would do exactly what I had done - seeking justice instead of just walking in lockstep to defend convictions that I didn't believe in," he said. The two men were convicted in 1992 of the Nov. 23, 1990, murder of bouncer Marcus Peterson outside the Palladium nightclub on East 14th Street. But in 2003, a Bronx drug dealer admitted to the slaying, and District Attorney Robert Morgenthau assigned Bibb to participate in a reinvestigation. After a 21-month probe, a judge granted a defense request for a hearing on the new evidence Bibb, now 53, said he was asked to represent the DA's office at the 2005 hearing, despite the fact that he had urged his bosses to drop the convictions.
The longtime assistant prosecutor didn't bow out of the case - explaining that he feared his replacement might actually win a second conviction. Instead, he said, he helped the defense lawyers locate witnesses, and even critiqued their cross-examination. He admitted he "did the best" he could to lose. His strategy was successful. A judge granted Lemus a new trial - at which he was acquitted - and prosecutors dropped Hidalgo's conviction. Bibb stayed with the case until just before he submitted final written arguments. Then he left the DA's office a few months later - to become a defense lawyer. Asked why he didn't walk out of the DA's office until the very end, he said, "Try quitting a job when you have three kids and a mortgage."
The Palladium case had become a political hot potato, and Morgenthau was facing a tough re-election fight in 2005. Lemus and Hidalgo originally had been convicted based on eyewitness testimony. But both men insisted crucial evidence had been withheld, and repeatedly appealed their convictions. When asked by The Post just before the 2005 election if his office was keeping innocent men in prison, Morgenthau replied, "There were four eyewitnesses to the shooting. The case was tried before a jury, and the jury convicted." But after the new evidence emerged, he said, "We thought it was appropriate to have a hearing," and added, "It was a thorough, professional job done by our office." A spokesperson for the Manhattan DA's Office could not immediately be reached for comment on Bibb's admission. Additional reporting by Ed Robinson and Lucas Alpert laura.italiano@nypost.com
Probe of Manhattan DA's Prosecutorial Misconduct Widens
Doubting Case, a Prosecutor Helped the Defense
The New York Times by BENJAMIN WEISER - June 23, 2008
The Manhattan district attorney, Robert M. Morgenthau, had a problem. The murder convictions of two men in one of his office’s big cases — the 1990 shooting of a bouncer outside the Palladium nightclub — had been called into question by a stream of new evidence. So the office decided on a re-examination, led by a 21-year veteran assistant, Daniel L. Bibb. Mr. Bibb spent nearly two years reinvestigating the killing and reported back: He believed that the two imprisoned men were not guilty, and that their convictions should be dropped. Yet top officials told him, he said, to go into a court hearing and defend the case anyway. He did, and in 2005 he lost. But in a recent interview, Mr. Bibb made a startling admission: He threw the case. Unwilling to do what his bosses ordered, he said, he deliberately helped the other side win. He tracked down hard-to-find or reluctant witnesses who pointed to other suspects and prepared them to testify for the defense. He talked strategy with defense lawyers. And when they veered from his coaching, he cornered them in the hallway and corrected them. “I did the best I could,” he said. “To lose.”
Today, the two men are free. At the end of the hearing, which stretched over six weeks, his superiors agreed to ask a judge to drop the conviction of one, Olmedo Hidalgo. The judge granted a new trial to the other, David Lemus, who was acquitted in December. Mr. Bibb, 53, who said it was painful to remain in the office, resigned in 2006 and is trying to build a new career as a defense lawyer in Manhattan — with some difficulty, friends say, in a profession where success can hang on the ability to cut deals with prosecutors.
Mr. Morgenthau’s office would not comment on Mr. Bibb’s claims. Daniel J. Castleman, chief assistant district attorney, would say only: “Nobody in this office is ever required to prosecute someone they believe is innocent. That was true then, as it is now. That being the case, no useful purpose would be served in engaging in a debate with a former staff member.” The office has said it had good reason to believe that the two men were guilty. Yet whatever the facts of the murder, the dispute offers an unusual glimpse of a prosecutor weighing the demands of conscience against his obligation to his office, and the extraordinary measures he took to settle that conflict in his own mind. “I was angry,” Mr. Bibb said, “that I was being put in a position to defend convictions that I didn’t believe in.” The case also reveals a rare public challenge to one of the nation’s most powerful district attorneys from within his office. As the hearing unfolded in 2005, Mr. Morgenthau, running for re-election, was sharply criticized by an opponent who said he had prosecuted the wrong men.
By then, the Palladium case had become one of the most troubled in the city’s recent history, stirred up every few years by fresh evidence, heralded in newspaper and television reports, that pointed to other suspects. It is not as if Mr. Morgenthau has refused to admit mistakes. In 2002, in spectacular fashion, his office recommended dismissing the convictions of five men in the attack on a jogger in Central Park, after its reinvestigation showed that another man had acted alone. “It’s my decision,” Mr. Morgenthau said then. “The buck stops here.” In fact, the prosecutor who led that inquiry, Nancy E. Ryan, was Mr. Bibb’s supervisor in the Palladium case — though Mr. Bibb would not detail his conversations with her or other superiors, saying they were privileged.
Defense lawyers confirmed that Mr. Bibb helped them, though he never explicitly stated his intentions. Some praised his efforts to see that justice was done. Others involved in the case suggested he did a disservice to both sides — shirking his duty as an assistant district attorney, and prolonging an injustice by not quitting the case, or the office. And some blame Mr. Bibb’s superiors. Steven M. Cohen, a former federal prosecutor who pushed Mr. Morgenthau’s office to reinvestigate, said that while Mr. Bibb should have refused to present the case, his bosses should not have pressed him. “If Bibb is to be believed, he was essentially asked to choose between his conscience and his job,” Mr. Cohen said. “Whether he made the right choice is irrelevant; that he was asked to make that choice is chilling.” At 6-foot-6, Mr. Bibb looks every inch the lawman, with a square jaw, a gravelly voice and a negotiating style that lawyers describe as brutally honest. He joined the district attorney’s office right out of Seton Hall Law School in 1982 and went on to handle some of its major murder cases and cold-case investigations.
The Palladium case certainly looked open and shut in 1992, when Mr. Lemus and Mr. Hidalgo were sentenced to 25 years to life. Several bouncers identified them as the men they scuffled with outside the East Village nightclub. Mr. Lemus’s ex-girlfriend said he claimed to have shot a bouncer there. But the next decade brought a string of nagging contradictions. A former member of a Bronx drug gang confessed that he and a friend had done the shooting. That spurred new examinations by the district attorney’s office, federal prosecutors, defense lawyers, the police and the press. When Mr. Morgenthau’s office was asked to take another look, Mr. Bibb said, his supervisors gave him carte blanche. “It really was, leave no stone unturned,” he said. Over 21 months, starting in 2003, he and two detectives conducted more than 50 interviews in more than a dozen states, ferreting out witnesses the police had somehow missed or ignored.
Mr. Bibb said he shared his growing doubts with his superiors. And at a meeting in early 2005, he recalled, after defense lawyers won court approval for a hearing into the new evidence, he urged that the convictions be set aside. “I made what I considered to be my strongest pitch,” he said. Instead, he said, he was ordered to go to the hearing, present the government’s case and let a judge decide — a strategy that violated his sense of a prosecutor’s duty. “I had always been taught that we made the decisions, that we made the tough calls, that we didn’t take things and throw them up against the wall” for a judge or jury to sort out, he said. “If the evidence doesn’t convince me, then I’m never going to be able to convince a jury.” Still, Mr. Bibb said, he worried that if he did not take the case, another prosecutor would — and possibly win. Defense lawyers said he plunged in. In long phone conversations, he helped them sort through the new evidence he had gathered.
“If I make a mistake in my interpretation of what he said, he’ll correct me,” said Gordon Mehler, who represented Mr. Lemus. “If there’s a piece of evidence that bears on another piece of evidence I’m talking about, he’ll remind me of it. That’s not something that a prosecutor typically does.” As the defense decided which witnesses to call, he again hunted them down — sometimes in prison or witness protection — and, when necessary, persuaded them to testify in State Supreme Court in Manhattan. “I made sure all of their witnesses were going to testify in a manner that would have the greatest impact, certainly consistent with the truth,” Mr. Bibb said. “I wasn’t telling anybody to make anything up.” He told them what questions to expect, both from the defense and his own cross-examination — which he admitted felt “a little bit weird.” Defense lawyers say they first met some of their witnesses on the day of testimony, outside the courtroom.
During breaks, Mr. Bibb confronted the lawyers when he felt they were not asking the right questions. “Don’t you understand?” one lawyer recalled him saying. “I’m your best friend in that courtroom.” Cross-examining the witnesses, Mr. Bibb took pains not to damage their credibility. Facing a former gang member who had pleaded guilty to six murders, he asked only a few perfunctory questions about the man’s record. Daniel J. Horwitz, the other defense lawyer, said the help was invaluable. “Did Dan play a useful role in making sure that justice prevailed in that courtroom? The answer is unequivocally yes.” When the testimony was over, Mr. Bibb said he made one last appeal to his superiors to drop the convictions. They agreed to do so for Mr. Hidalgo, but not for Mr. Lemus — who was still implicated by “strong evidence,” the office said at the time. “I said, ‘I’m done,’ ” Mr. Bibb recalled. “I wanted nothing to do with it.”
Another prosecutor made final written arguments, and in October 2005, Justice Roger S. Hayes ordered the new trial for Mr. Lemus. Demoralized by the case, Mr. Bibb resigned a few months later. A close friend, Robert Mooney, a New York City police detective, said that if not for the Palladium case, Mr. Bibb “would have spent his entire professional life at the prosecutor’s office. “He’s brokenhearted that he’s not doing this anymore.” In a brief interview after he quit, Mr. Bibb defended Mr. Morgenthau against criticism that the case had been mishandled. “There was never any evil intent on the part of the D.A.’s office,” Mr. Bibb said then.
But around the same time, he distanced himself from the office’s decisions in remarks to “Dateline NBC.” He said that during the hearing, he already believed the two men were not guilty, but proceeded because he had a client to represent: Mr. Morgenthau. “He was aware of what was going on,” Mr. Bibb told the interviewer. “The decision to go to a hearing was not made in my presence.” As for Mr. Bibb’s new revelation that he helped the defense, lawyers and others are divided. Stephen Gillers, a legal ethics professor at the New York University School of Law, said he believed that Mr. Bibb had violated his obligation to his client, and could conceivably face action by a disciplinary panel. “He’s entitled to his conscience, but his conscience does not entitle him to subvert his client’s case,” Mr. Gillers said. “It entitles him to withdraw from the case, or quit if he can’t.”
On the other hand, he added, Mr. Morgenthau could have defused any conflict by assigning another prosecutor. John Schwartz, a former detective who worked to exonerate the convicted men, said Mr. Bibb did them no favor by continuing in the case. “He effectively took part in keeping two innocent men in prison an additional year at least, for not going with what he felt was the truth,” Mr. Schwartz said. But Mr. Mehler, the defense lawyer, said Mr. Bibb acted honorably. While lawyers on both sides must advocate for their clients, he said, “a prosecutor has an additional duty to search out the truth. “I say that he lived up to that.” Today, Mr. Bibb says he does not believe he crossed any line. “I didn’t work for the other side,” he said. “I worked for what I thought was the right thing.”
The New York Times by BENJAMIN WEISER - June 23, 2008
The Manhattan district attorney, Robert M. Morgenthau, had a problem. The murder convictions of two men in one of his office’s big cases — the 1990 shooting of a bouncer outside the Palladium nightclub — had been called into question by a stream of new evidence. So the office decided on a re-examination, led by a 21-year veteran assistant, Daniel L. Bibb. Mr. Bibb spent nearly two years reinvestigating the killing and reported back: He believed that the two imprisoned men were not guilty, and that their convictions should be dropped. Yet top officials told him, he said, to go into a court hearing and defend the case anyway. He did, and in 2005 he lost. But in a recent interview, Mr. Bibb made a startling admission: He threw the case. Unwilling to do what his bosses ordered, he said, he deliberately helped the other side win. He tracked down hard-to-find or reluctant witnesses who pointed to other suspects and prepared them to testify for the defense. He talked strategy with defense lawyers. And when they veered from his coaching, he cornered them in the hallway and corrected them. “I did the best I could,” he said. “To lose.”
Today, the two men are free. At the end of the hearing, which stretched over six weeks, his superiors agreed to ask a judge to drop the conviction of one, Olmedo Hidalgo. The judge granted a new trial to the other, David Lemus, who was acquitted in December. Mr. Bibb, 53, who said it was painful to remain in the office, resigned in 2006 and is trying to build a new career as a defense lawyer in Manhattan — with some difficulty, friends say, in a profession where success can hang on the ability to cut deals with prosecutors.
Mr. Morgenthau’s office would not comment on Mr. Bibb’s claims. Daniel J. Castleman, chief assistant district attorney, would say only: “Nobody in this office is ever required to prosecute someone they believe is innocent. That was true then, as it is now. That being the case, no useful purpose would be served in engaging in a debate with a former staff member.” The office has said it had good reason to believe that the two men were guilty. Yet whatever the facts of the murder, the dispute offers an unusual glimpse of a prosecutor weighing the demands of conscience against his obligation to his office, and the extraordinary measures he took to settle that conflict in his own mind. “I was angry,” Mr. Bibb said, “that I was being put in a position to defend convictions that I didn’t believe in.” The case also reveals a rare public challenge to one of the nation’s most powerful district attorneys from within his office. As the hearing unfolded in 2005, Mr. Morgenthau, running for re-election, was sharply criticized by an opponent who said he had prosecuted the wrong men.
By then, the Palladium case had become one of the most troubled in the city’s recent history, stirred up every few years by fresh evidence, heralded in newspaper and television reports, that pointed to other suspects. It is not as if Mr. Morgenthau has refused to admit mistakes. In 2002, in spectacular fashion, his office recommended dismissing the convictions of five men in the attack on a jogger in Central Park, after its reinvestigation showed that another man had acted alone. “It’s my decision,” Mr. Morgenthau said then. “The buck stops here.” In fact, the prosecutor who led that inquiry, Nancy E. Ryan, was Mr. Bibb’s supervisor in the Palladium case — though Mr. Bibb would not detail his conversations with her or other superiors, saying they were privileged.
Defense lawyers confirmed that Mr. Bibb helped them, though he never explicitly stated his intentions. Some praised his efforts to see that justice was done. Others involved in the case suggested he did a disservice to both sides — shirking his duty as an assistant district attorney, and prolonging an injustice by not quitting the case, or the office. And some blame Mr. Bibb’s superiors. Steven M. Cohen, a former federal prosecutor who pushed Mr. Morgenthau’s office to reinvestigate, said that while Mr. Bibb should have refused to present the case, his bosses should not have pressed him. “If Bibb is to be believed, he was essentially asked to choose between his conscience and his job,” Mr. Cohen said. “Whether he made the right choice is irrelevant; that he was asked to make that choice is chilling.” At 6-foot-6, Mr. Bibb looks every inch the lawman, with a square jaw, a gravelly voice and a negotiating style that lawyers describe as brutally honest. He joined the district attorney’s office right out of Seton Hall Law School in 1982 and went on to handle some of its major murder cases and cold-case investigations.
The Palladium case certainly looked open and shut in 1992, when Mr. Lemus and Mr. Hidalgo were sentenced to 25 years to life. Several bouncers identified them as the men they scuffled with outside the East Village nightclub. Mr. Lemus’s ex-girlfriend said he claimed to have shot a bouncer there. But the next decade brought a string of nagging contradictions. A former member of a Bronx drug gang confessed that he and a friend had done the shooting. That spurred new examinations by the district attorney’s office, federal prosecutors, defense lawyers, the police and the press. When Mr. Morgenthau’s office was asked to take another look, Mr. Bibb said, his supervisors gave him carte blanche. “It really was, leave no stone unturned,” he said. Over 21 months, starting in 2003, he and two detectives conducted more than 50 interviews in more than a dozen states, ferreting out witnesses the police had somehow missed or ignored.
Mr. Bibb said he shared his growing doubts with his superiors. And at a meeting in early 2005, he recalled, after defense lawyers won court approval for a hearing into the new evidence, he urged that the convictions be set aside. “I made what I considered to be my strongest pitch,” he said. Instead, he said, he was ordered to go to the hearing, present the government’s case and let a judge decide — a strategy that violated his sense of a prosecutor’s duty. “I had always been taught that we made the decisions, that we made the tough calls, that we didn’t take things and throw them up against the wall” for a judge or jury to sort out, he said. “If the evidence doesn’t convince me, then I’m never going to be able to convince a jury.” Still, Mr. Bibb said, he worried that if he did not take the case, another prosecutor would — and possibly win. Defense lawyers said he plunged in. In long phone conversations, he helped them sort through the new evidence he had gathered.
“If I make a mistake in my interpretation of what he said, he’ll correct me,” said Gordon Mehler, who represented Mr. Lemus. “If there’s a piece of evidence that bears on another piece of evidence I’m talking about, he’ll remind me of it. That’s not something that a prosecutor typically does.” As the defense decided which witnesses to call, he again hunted them down — sometimes in prison or witness protection — and, when necessary, persuaded them to testify in State Supreme Court in Manhattan. “I made sure all of their witnesses were going to testify in a manner that would have the greatest impact, certainly consistent with the truth,” Mr. Bibb said. “I wasn’t telling anybody to make anything up.” He told them what questions to expect, both from the defense and his own cross-examination — which he admitted felt “a little bit weird.” Defense lawyers say they first met some of their witnesses on the day of testimony, outside the courtroom.
During breaks, Mr. Bibb confronted the lawyers when he felt they were not asking the right questions. “Don’t you understand?” one lawyer recalled him saying. “I’m your best friend in that courtroom.” Cross-examining the witnesses, Mr. Bibb took pains not to damage their credibility. Facing a former gang member who had pleaded guilty to six murders, he asked only a few perfunctory questions about the man’s record. Daniel J. Horwitz, the other defense lawyer, said the help was invaluable. “Did Dan play a useful role in making sure that justice prevailed in that courtroom? The answer is unequivocally yes.” When the testimony was over, Mr. Bibb said he made one last appeal to his superiors to drop the convictions. They agreed to do so for Mr. Hidalgo, but not for Mr. Lemus — who was still implicated by “strong evidence,” the office said at the time. “I said, ‘I’m done,’ ” Mr. Bibb recalled. “I wanted nothing to do with it.”
Another prosecutor made final written arguments, and in October 2005, Justice Roger S. Hayes ordered the new trial for Mr. Lemus. Demoralized by the case, Mr. Bibb resigned a few months later. A close friend, Robert Mooney, a New York City police detective, said that if not for the Palladium case, Mr. Bibb “would have spent his entire professional life at the prosecutor’s office. “He’s brokenhearted that he’s not doing this anymore.” In a brief interview after he quit, Mr. Bibb defended Mr. Morgenthau against criticism that the case had been mishandled. “There was never any evil intent on the part of the D.A.’s office,” Mr. Bibb said then.
But around the same time, he distanced himself from the office’s decisions in remarks to “Dateline NBC.” He said that during the hearing, he already believed the two men were not guilty, but proceeded because he had a client to represent: Mr. Morgenthau. “He was aware of what was going on,” Mr. Bibb told the interviewer. “The decision to go to a hearing was not made in my presence.” As for Mr. Bibb’s new revelation that he helped the defense, lawyers and others are divided. Stephen Gillers, a legal ethics professor at the New York University School of Law, said he believed that Mr. Bibb had violated his obligation to his client, and could conceivably face action by a disciplinary panel. “He’s entitled to his conscience, but his conscience does not entitle him to subvert his client’s case,” Mr. Gillers said. “It entitles him to withdraw from the case, or quit if he can’t.”
On the other hand, he added, Mr. Morgenthau could have defused any conflict by assigning another prosecutor. John Schwartz, a former detective who worked to exonerate the convicted men, said Mr. Bibb did them no favor by continuing in the case. “He effectively took part in keeping two innocent men in prison an additional year at least, for not going with what he felt was the truth,” Mr. Schwartz said. But Mr. Mehler, the defense lawyer, said Mr. Bibb acted honorably. While lawyers on both sides must advocate for their clients, he said, “a prosecutor has an additional duty to search out the truth. “I say that he lived up to that.” Today, Mr. Bibb says he does not believe he crossed any line. “I didn’t work for the other side,” he said. “I worked for what I thought was the right thing.”
Sunday, June 22, 2008
NY Times EDITORIAL: NY’s justice system has fallen into crisis
Repairing New York’s Justice System
The New York Times EDITORIAL - June 2, 2008
New York’s justice system has fallen into crisis. Yet Albany is not dealing with three big problems dragging the system down — missing judicial pay raises, glaring deficiencies in indigent defense services and the swelling workload overwhelming Family Court. These problems need not fester. But with just three weeks remaining in the legislative session, Gov. David Paterson and members of the State Senate and Assembly are running out of time to take action and avoid further damage. Judicial pay: By now the need for a significant pay increase for state judges is beyond debate. Their last raise was in 1999, an unconscionable lag that puts New York at 49th of the 50 states in judicial pay when the cost of living is taken into account. After years of trying to reason with, beg and shame Albany’s key players, the state’s chief judge, Judith Kaye, reluctantly filed a lawsuit, charging that the refusal to pay judges adequately violates the constitutional separation of powers.
Whether that creative legal argument will prevail remains to be seen. But the fact that Judge Kaye felt compelled to sue should be a source of embarrassment to legislators, especially Assembly Democrats, who have held judicial pay hostage while they maneuver for their own raises. For the judicial branch to be at loggerheads with the legislative and executive branches over pay is not a healthy situation. The Legislature should remove the motivation for the lawsuit by raising judicial salaries to the level of Federal District Court judges, and creating a state commission, along the lines Judge Kaye has proposed, to help set salary levels for judges and legislators. Indigent defense: A 2006 report prepared for Judge Kaye cited major problems in the way counties are providing legal aid in criminal cases, including exploding caseloads, atrocious lawyering and “grossly inadequate” financing. It sensibly called for a state takeover of public defense services under the direction of an independent commission, which would enforce uniform standards from county to county.
Governor Paterson has voiced support for the idea. Of course, money this year is tight. But one step that can easily be taken this session would be to create the commission and have a small staff begin working on a detailed plan for overhauling the system. Family Court: With the caseload soaring, and new duties imposed by a 2005 law mandating more frequent court review of children in foster care, New York urgently needs more Family Court judges. Lawmakers should promptly grant Judge Kaye’s request to add 39 Family Court judges statewide. The Legislature should also fix a serious gap in the law: the inability of people in serious relationships with no children in common to obtain orders of protection in Family Court. Most states allow such orders, which are critical for public safety. But the Republican-controlled State Senate has blocked them for years largely out of reluctance to treat same-sex couples as “family.” On all of these issues, Albany needs to pull the state’s justice system, which was once a national leader, into the 21st century.
*****Follow-Up Letter to the Editor******
LETTER; New York Justice - June 9, 2008
Re ''Repairing New York's Justice System'' (editorial, June 2):
To the Editor:
It is 45 years since the United States Supreme Court decided Gideon v. Wainwright, which enshrined a defendant's right to effective counsel regardless of ability to pay. For New York to continue to be in such gross violation of standards that would make that constitutional right meaningful is a stain on our progressive traditions. An Assembly bill currently being discussed in Albany would at least begin the process outlined in the report to Chief Judge Judith S. Kaye by creating a commission to study the fiscal and operational parameters of a state takeover. It is time for Gov. David A. Paterson to put the weight of his office behind the bill.
Jonathan E. Gradess - Albany, June 2, 2008
The writer is the executive director of the New York State Defenders Association.
The New York Times EDITORIAL - June 2, 2008
New York’s justice system has fallen into crisis. Yet Albany is not dealing with three big problems dragging the system down — missing judicial pay raises, glaring deficiencies in indigent defense services and the swelling workload overwhelming Family Court. These problems need not fester. But with just three weeks remaining in the legislative session, Gov. David Paterson and members of the State Senate and Assembly are running out of time to take action and avoid further damage. Judicial pay: By now the need for a significant pay increase for state judges is beyond debate. Their last raise was in 1999, an unconscionable lag that puts New York at 49th of the 50 states in judicial pay when the cost of living is taken into account. After years of trying to reason with, beg and shame Albany’s key players, the state’s chief judge, Judith Kaye, reluctantly filed a lawsuit, charging that the refusal to pay judges adequately violates the constitutional separation of powers.
Whether that creative legal argument will prevail remains to be seen. But the fact that Judge Kaye felt compelled to sue should be a source of embarrassment to legislators, especially Assembly Democrats, who have held judicial pay hostage while they maneuver for their own raises. For the judicial branch to be at loggerheads with the legislative and executive branches over pay is not a healthy situation. The Legislature should remove the motivation for the lawsuit by raising judicial salaries to the level of Federal District Court judges, and creating a state commission, along the lines Judge Kaye has proposed, to help set salary levels for judges and legislators. Indigent defense: A 2006 report prepared for Judge Kaye cited major problems in the way counties are providing legal aid in criminal cases, including exploding caseloads, atrocious lawyering and “grossly inadequate” financing. It sensibly called for a state takeover of public defense services under the direction of an independent commission, which would enforce uniform standards from county to county.
Governor Paterson has voiced support for the idea. Of course, money this year is tight. But one step that can easily be taken this session would be to create the commission and have a small staff begin working on a detailed plan for overhauling the system. Family Court: With the caseload soaring, and new duties imposed by a 2005 law mandating more frequent court review of children in foster care, New York urgently needs more Family Court judges. Lawmakers should promptly grant Judge Kaye’s request to add 39 Family Court judges statewide. The Legislature should also fix a serious gap in the law: the inability of people in serious relationships with no children in common to obtain orders of protection in Family Court. Most states allow such orders, which are critical for public safety. But the Republican-controlled State Senate has blocked them for years largely out of reluctance to treat same-sex couples as “family.” On all of these issues, Albany needs to pull the state’s justice system, which was once a national leader, into the 21st century.
LETTER; New York Justice - June 9, 2008
Re ''Repairing New York's Justice System'' (editorial, June 2):
To the Editor:
It is 45 years since the United States Supreme Court decided Gideon v. Wainwright, which enshrined a defendant's right to effective counsel regardless of ability to pay. For New York to continue to be in such gross violation of standards that would make that constitutional right meaningful is a stain on our progressive traditions. An Assembly bill currently being discussed in Albany would at least begin the process outlined in the report to Chief Judge Judith S. Kaye by creating a commission to study the fiscal and operational parameters of a state takeover. It is time for Gov. David A. Paterson to put the weight of his office behind the bill.
Jonathan E. Gradess - Albany, June 2, 2008
The writer is the executive director of the New York State Defenders Association.
Saturday, June 21, 2008
Federal Judge Faces Impeachment
Federal Judge Faces Impeachment Over Claim He Took Cash From Lawyers in Pending Case
The National Law Journal by Pamela A. MacLean - June 20, 2008
The federal judiciary's top administrative body has asked the U.S. House of Representatives to consider impeachment of U.S. District Judge G. Thomas Porteous of Louisiana, alleging that he "solicited and received" cash from lawyers in a pending case. The allegations stemming from an internal judicial investigation of Porteous go beyond what was previously disclosed in a 5th U.S. Circuit Court of Appeals inquiry in 2007, when he was accused of perjury and false financial disclosures to conceal cash in a bankruptcy case. In re Complaint of Judicial Misconduct against U.S. District Judge Porteous, 07-05-351-0085. The Judicial Conference of the United States, the federal judiciary's policymaking body, sent its determination to Speaker of the House Nancy Pelosi, D-Calif., in a letter June 18 that "consideration of impeachment may be warranted." The Judicial Conference letter cited not only allegations of repeated perjury in financial disclosure in a bankruptcy case, but also violation of criminal law and ethical canons while presiding over In re: Liljeberg enters, Inc. v. Lifemark Hospitals, Inc., No. 2:93-cv-1784. The case was partially reversed by the 5th Circuit in, 304 F.3d 410 (2002). In the bench trial, Porteous rejected a recusal motion and allegedly failed to disclose "that the lawyers in question had often provided him with cash. Thereafter, while a bench verdict was pending, he solicited and received from the lawyers appearing before him illegal gratuities in the form of cash and other things of value," the letter states. Porteous was not available for comment, according to his chambers staff. "This is as serious an accusation as you can make against a federal judge," said Arthur Hellman, professor at the University of Pittsburgh School of Law who has studied and written extensively on judicial discipline.
"I expect that the House Judiciary Committee will proceed quickly with an impeachment inquiry, and if these allegations are substantiated, Judge Porteous will be impeached, convicted and removed from office -- unless he resigns first," Hellman said. "Now that the Judicial Conference has completed its review of Judge Porteous's actions, the House Judiciary Committee will promptly review the materials provided by the Conference and determine what further action should be taken in this matter," said Representative John Conyers Jr., chairman of the committee, D-Mich. Ranking Republican on the committee, Lamar Smith, R-Texas, also said in a prepared statement that Republicans would work with the Democrats to ensure "expeditious and appropriate action is taken." Porteous was appointed by President Clinton in 1994. He was a former Louisiana state judge for the 10 years preceding his appointment and served as the city attorney in Harahan, La.
The National Law Journal by Pamela A. MacLean - June 20, 2008
The federal judiciary's top administrative body has asked the U.S. House of Representatives to consider impeachment of U.S. District Judge G. Thomas Porteous of Louisiana, alleging that he "solicited and received" cash from lawyers in a pending case. The allegations stemming from an internal judicial investigation of Porteous go beyond what was previously disclosed in a 5th U.S. Circuit Court of Appeals inquiry in 2007, when he was accused of perjury and false financial disclosures to conceal cash in a bankruptcy case. In re Complaint of Judicial Misconduct against U.S. District Judge Porteous, 07-05-351-0085. The Judicial Conference of the United States, the federal judiciary's policymaking body, sent its determination to Speaker of the House Nancy Pelosi, D-Calif., in a letter June 18 that "consideration of impeachment may be warranted." The Judicial Conference letter cited not only allegations of repeated perjury in financial disclosure in a bankruptcy case, but also violation of criminal law and ethical canons while presiding over In re: Liljeberg enters, Inc. v. Lifemark Hospitals, Inc., No. 2:93-cv-1784. The case was partially reversed by the 5th Circuit in, 304 F.3d 410 (2002). In the bench trial, Porteous rejected a recusal motion and allegedly failed to disclose "that the lawyers in question had often provided him with cash. Thereafter, while a bench verdict was pending, he solicited and received from the lawyers appearing before him illegal gratuities in the form of cash and other things of value," the letter states. Porteous was not available for comment, according to his chambers staff. "This is as serious an accusation as you can make against a federal judge," said Arthur Hellman, professor at the University of Pittsburgh School of Law who has studied and written extensively on judicial discipline.
"I expect that the House Judiciary Committee will proceed quickly with an impeachment inquiry, and if these allegations are substantiated, Judge Porteous will be impeached, convicted and removed from office -- unless he resigns first," Hellman said. "Now that the Judicial Conference has completed its review of Judge Porteous's actions, the House Judiciary Committee will promptly review the materials provided by the Conference and determine what further action should be taken in this matter," said Representative John Conyers Jr., chairman of the committee, D-Mich. Ranking Republican on the committee, Lamar Smith, R-Texas, also said in a prepared statement that Republicans would work with the Democrats to ensure "expeditious and appropriate action is taken." Porteous was appointed by President Clinton in 1994. He was a former Louisiana state judge for the 10 years preceding his appointment and served as the city attorney in Harahan, La.
Friday, June 20, 2008
The Heads Start to Role; Public Administrator and Deputy Resign
NY Court Administrator, Deputy Resign
The New York Law Journal by Daniel Wise - June 20, 2008
Both the Brooklyn Public Administrator and his deputy have resigned within the past week. In his letter of resignation, dated June 13, the outgoing administrator, Gerard A. Cabrera, said he was resigning because he had given "a two year commitment to the position" and had fulfilled "the goals I set out to accomplish." Mr. Cabrera was appointed jointly in May 2006 by Brooklyn Surrogate Margarita López Torres and former Brooklyn Surrogate Frank A. Seddio. The surrogates also appoint the counsel to the administrator. Natasha L. Godby, Mr. Cabrera's deputy, submitted a letter of resignation as deputy public administrator on Tuesday without stating a reason. The resignations preceded the Wednesday arrest of an accountant with the Public Administrator's Office on charges of stealing $3,300 from an estate the office was handling. The public administrator's office handles the estates of persons who die without wills.
But neither Mr. Cabrera nor Ms. Godby were implicated in any criminal activity related to the alleged theft, said a law enforcement source. In addition, Mr. Cabrera reported the theft to the city Department of Investigation, which conducted a six-week probe, a spokesman for the department said. Several sources said that the Office of Court Administration had conducted an examination of the office over several months, which is now concluded. The investigation of accountant, Arthur Orikher began on April 30, after the office discovered that $3,300 was missing from a safe deposit box that employees of the office had collected for safekeeping that day, according to a statement issued by the Department of Investigation.
Neither Mr. Cabrera nor Ms. Godby could be located for comment. Prior to his appointment as public administrator, Mr. Cabrera had been assistant director of legal services for the Gay Men's Health Crisis. Ms. Godby had been a lawyer with the Corporation Counsel's tort division from 2003 until the end of 2006. David Bookstaver, a spokesman for the court system, said that Surrogate López Torres and Surrogate Diana A. Johnson, who was elected in November 2007 to the seat that Surrogate Seddio had held, are "seeking replacements" for the two officials who resigned. Mr. Bookstaver declined to comment further with respect to the resignations. Surrogate López Torres had made reform of the public administrator's office and the way its counsel are selected a centerpiece of her campaign for office in 2005. Surrogate López Torres' predecessor, Surrogate Michael H. Feinberg, was removed from the bench for having approved excessive compensation for the lawyer he had appointed as counsel to the public administrator, Louis H. Rosenthal, who was his political and personal friend (NYLJ, June 30, 2005). Both Surrogate López Torres and Surrogate Johnson referred all inquiries to Mr. Bookstaver.
Mr. Seddio, who resigned as surrogate in May 2007, said in an interview yesterday that he and Surrogate López Torres selected Mr. Cabrera based upon the recommendations of a non-partisan screening panel they had established. Mr. Seddio is now a vice president of Power Express, a mortgage bank. The process was designed, Mr. Seddio said, to be "free of any political influence" and to create "a greater level of respect for the [public administrator's] office given the problems of the prior administration." Mr. Seddio added that he "always felt that [Mr. Cabrera] was dedicated to the position, worked long hours and paid serious attention to addressing the issues in the office." Mr. Orikher, the accountant charged with stealing, was released on his own recognizance after being arraigned yesterday.
According to a statement issued by the Department of Investigations, on April 30, 2008, an employee of the public administrator's office handed Mr. Orikher a sealed envelop containing $3,300 that had been collected earlier that day from the safe deposit box of a person who had died. Mr. Orikher, according to the statement, was supposed to secure the money in a safe until it could be deposited into a bank account maintained by the public administrator's office. He was accused in a criminal complaint of depositing $2,100 into his personal account at the Bank of America and used the remaining $1,200 for personal purposes. Separately, Mr. Orikher is accused of depositing two counterfeit checks, totaling nearly $10,000 into his own bank account, according to the statement. Those two counterfeit checks were unrelated to the operation of the public administrator's office. If convicted. Mr. Orikher faces a maximum prison term of 2 1/2-to-7 years in prison.
The New York Law Journal by Daniel Wise - June 20, 2008
Both the Brooklyn Public Administrator and his deputy have resigned within the past week. In his letter of resignation, dated June 13, the outgoing administrator, Gerard A. Cabrera, said he was resigning because he had given "a two year commitment to the position" and had fulfilled "the goals I set out to accomplish." Mr. Cabrera was appointed jointly in May 2006 by Brooklyn Surrogate Margarita López Torres and former Brooklyn Surrogate Frank A. Seddio. The surrogates also appoint the counsel to the administrator. Natasha L. Godby, Mr. Cabrera's deputy, submitted a letter of resignation as deputy public administrator on Tuesday without stating a reason. The resignations preceded the Wednesday arrest of an accountant with the Public Administrator's Office on charges of stealing $3,300 from an estate the office was handling. The public administrator's office handles the estates of persons who die without wills.
But neither Mr. Cabrera nor Ms. Godby were implicated in any criminal activity related to the alleged theft, said a law enforcement source. In addition, Mr. Cabrera reported the theft to the city Department of Investigation, which conducted a six-week probe, a spokesman for the department said. Several sources said that the Office of Court Administration had conducted an examination of the office over several months, which is now concluded. The investigation of accountant, Arthur Orikher began on April 30, after the office discovered that $3,300 was missing from a safe deposit box that employees of the office had collected for safekeeping that day, according to a statement issued by the Department of Investigation.
Neither Mr. Cabrera nor Ms. Godby could be located for comment. Prior to his appointment as public administrator, Mr. Cabrera had been assistant director of legal services for the Gay Men's Health Crisis. Ms. Godby had been a lawyer with the Corporation Counsel's tort division from 2003 until the end of 2006. David Bookstaver, a spokesman for the court system, said that Surrogate López Torres and Surrogate Diana A. Johnson, who was elected in November 2007 to the seat that Surrogate Seddio had held, are "seeking replacements" for the two officials who resigned. Mr. Bookstaver declined to comment further with respect to the resignations. Surrogate López Torres had made reform of the public administrator's office and the way its counsel are selected a centerpiece of her campaign for office in 2005. Surrogate López Torres' predecessor, Surrogate Michael H. Feinberg, was removed from the bench for having approved excessive compensation for the lawyer he had appointed as counsel to the public administrator, Louis H. Rosenthal, who was his political and personal friend (NYLJ, June 30, 2005). Both Surrogate López Torres and Surrogate Johnson referred all inquiries to Mr. Bookstaver.
Mr. Seddio, who resigned as surrogate in May 2007, said in an interview yesterday that he and Surrogate López Torres selected Mr. Cabrera based upon the recommendations of a non-partisan screening panel they had established. Mr. Seddio is now a vice president of Power Express, a mortgage bank. The process was designed, Mr. Seddio said, to be "free of any political influence" and to create "a greater level of respect for the [public administrator's] office given the problems of the prior administration." Mr. Seddio added that he "always felt that [Mr. Cabrera] was dedicated to the position, worked long hours and paid serious attention to addressing the issues in the office." Mr. Orikher, the accountant charged with stealing, was released on his own recognizance after being arraigned yesterday.
According to a statement issued by the Department of Investigations, on April 30, 2008, an employee of the public administrator's office handed Mr. Orikher a sealed envelop containing $3,300 that had been collected earlier that day from the safe deposit box of a person who had died. Mr. Orikher, according to the statement, was supposed to secure the money in a safe until it could be deposited into a bank account maintained by the public administrator's office. He was accused in a criminal complaint of depositing $2,100 into his personal account at the Bank of America and used the remaining $1,200 for personal purposes. Separately, Mr. Orikher is accused of depositing two counterfeit checks, totaling nearly $10,000 into his own bank account, according to the statement. Those two counterfeit checks were unrelated to the operation of the public administrator's office. If convicted. Mr. Orikher faces a maximum prison term of 2 1/2-to-7 years in prison.
10th Ethics Federal Lawsuit Filed
Breaking News...... And then there were 10 !! The Ethics Scandal Grows..... Public Integrity Unit of U.S. Attorney's Office on Notice.....
The plaintiff in the most recent filing is a New York admitted attorney...The latest filing, made June 17, 2008, in U.S. District Court for the Southern District of New York, seeks association to Anderson v. NY (07cv9599). The request to be RELATED is pending before the Hon. Shira A. Scheindlin. Stay tuned to history in the making: Tammany Hall II .............. MORE ON THIS SOON...............
Thursday, June 19, 2008
Who Should Be NY's Next Chief Judge?
Help Wanted: State Seeking Its Next Chief Judge
The New York Sun by JOSEPH GOLDSTEIN - June 19, 2008
Who wants to be the state's next chief judge?
ASSOCIATED PRESS by Mike Groll
Chief Judge Judith Kaye speaks during a news conference at the New York State Bar Association at Albany on March 31.
For New York's most ambitious lawyers, the dream job has finally opened up. New York's longtime chief judge, Judith Kaye, is retiring after 15 years in her current position. The state officially announced yesterday that it is looking for a replacement. This job posting is not going to go unanswered. Appointments to the state's top court, the Court of Appeals, are ultimately made by the governor, who is limited to choosing from seven candidates put forward by a state commission. To be considered by the commission, a candidate must apply. With a current salary of $156,000, the job of presiding over the state judiciary would bring a drastic pay cut for many would-be applicants who are partners at major law firms. But a raise may be forthcoming, after a state judge last week ordered the Legislature to up judicial pay.
Many of those who have applied for past Court of Appeals vacancies are already judges of the lower courts. Repeat candidates include Judge James Yates, who, in the span of a month earlier this year, both accepted and subsequently turned down the job of counsel to the governor, as well as Judge Richard Andrias, who sits on a mid-level appellate court in Manhattan. Another likely candidate, courthouse sources say, is Judge Jonathan Lippman, who previously served as Chief Judge Kaye's top administrator. The commission that will vet candidates, the Commission on Judicial Nomination, is made up of 12 members. The governor and chief judge each appoint four members of the commission, while legislators in top posts of the Assembly and Senate fill the remaining four spots. This year's commission is an assemblage of lawyers, judges, and professors. A close adviser to Governor Pataki, John O'Mara, heads it. The deadline for receipt of applications is September 8.
The New York Sun by JOSEPH GOLDSTEIN - June 19, 2008
Who wants to be the state's next chief judge?
ASSOCIATED PRESS by Mike Groll
Chief Judge Judith Kaye speaks during a news conference at the New York State Bar Association at Albany on March 31.
For New York's most ambitious lawyers, the dream job has finally opened up. New York's longtime chief judge, Judith Kaye, is retiring after 15 years in her current position. The state officially announced yesterday that it is looking for a replacement. This job posting is not going to go unanswered. Appointments to the state's top court, the Court of Appeals, are ultimately made by the governor, who is limited to choosing from seven candidates put forward by a state commission. To be considered by the commission, a candidate must apply. With a current salary of $156,000, the job of presiding over the state judiciary would bring a drastic pay cut for many would-be applicants who are partners at major law firms. But a raise may be forthcoming, after a state judge last week ordered the Legislature to up judicial pay.
Many of those who have applied for past Court of Appeals vacancies are already judges of the lower courts. Repeat candidates include Judge James Yates, who, in the span of a month earlier this year, both accepted and subsequently turned down the job of counsel to the governor, as well as Judge Richard Andrias, who sits on a mid-level appellate court in Manhattan. Another likely candidate, courthouse sources say, is Judge Jonathan Lippman, who previously served as Chief Judge Kaye's top administrator. The commission that will vet candidates, the Commission on Judicial Nomination, is made up of 12 members. The governor and chief judge each appoint four members of the commission, while legislators in top posts of the Assembly and Senate fill the remaining four spots. This year's commission is an assemblage of lawyers, judges, and professors. A close adviser to Governor Pataki, John O'Mara, heads it. The deadline for receipt of applications is September 8.
Taste of Prison Leaves NY Pol Chatty
And good sources say the feds can't get her to stop talking.....
BRIBED POL GETS BREAK
The New York Post by ALEX GINSBERG - June 19, 2008
A Brooklyn appeals judge yesterday sprang disgraced ex-assemblywoman Diane Gordon from prison, issuing a stay of sentence that allows her to remain free until her appeal is decided. Justice Steven Fisher ordered Gordon, 58, released on $100,000 bail from Bedford Hills Correctional Facility in Westchester, where she was set to begin a 2-to-6-year sentence. The former assemblywoman was convicted in April of promising to help a shady developer win a contract to develop a piece of city land, in exchange for an offer to build her a $500,000 home in a gated community.
BRIBED POL GETS BREAK
The New York Post by ALEX GINSBERG - June 19, 2008
A Brooklyn appeals judge yesterday sprang disgraced ex-assemblywoman Diane Gordon from prison, issuing a stay of sentence that allows her to remain free until her appeal is decided. Justice Steven Fisher ordered Gordon, 58, released on $100,000 bail from Bedford Hills Correctional Facility in Westchester, where she was set to begin a 2-to-6-year sentence. The former assemblywoman was convicted in April of promising to help a shady developer win a contract to develop a piece of city land, in exchange for an offer to build her a $500,000 home in a gated community.
Judicial Reports: Policing the Judge Police: Part II
Policing the Judge Police: Part II
Judicial Reports by Jesse Sunenblick - jsunenblick@judicialstudies.com - June 18, 2008
Litigants are prevented, under the doctrine of judicial immunity, from suing jurists over the content of their decisions. But when it comes to discipline, the Commission on Judicial Conduct doesn't feel similarly constrained. Like the internal affairs division of a police department, the Commission on Judicial Conduct suffers criticism from both those who accuse it of permissiveness and others who claim it’s too harsh. But three recent, and contentious, removal cases highlight an additional area of controversy: whether the Commission threatens the core of judicial independence by infringing on jurisprudence itself.
The doctrine of judicial immunity precludes litigants from suing judges just because they don't like a given ruling. Shouldn’t the same protection extend to the realm of discipline? “There’s a fairly serious theoretical issue in terms of when does judicial discretion end, and when does it become misconduct,” said Lawrence Goldman, the Commission’s Chairman from 1990 to 2006. “Even though areas of law can cross ethical lines, concerning misconduct there should be a wide swath. Judges should be able to commit mistakes within reason — you don’t want a judge scared to death that he will face the commission if he rules a certain way.”’
MISTAKES VERSUS MISCONDUCT
In 2005, Goldman wrote what ranks among the Commission’s most fervent dissents, taking exception to the ouster of former Brooklyn Surrogate Court Judge Michael Feinberg for awarding sweetheart guardianship appointments to a friend. While the Court of Appeals unanimously upheld the Commission’s recommendation — at a time when the entire Brooklyn bench was under the microscope — Goldman argued that most of Feinberg’s errors fell within accepted practice.
Goldman agreed with the Commission’s main finding that Feinberg inexplicably neglected to obtain affidavits of legal services from Rosenthal. But as for the other charges — that Feinberg’s 8 percent flat fee topped an administrative (but not canonized) norm of 6 percent, and was excessive — Goldman doubted they rose to the level of misconduct. He pointed out that judges routinely exceeded the norm (albeit with proper documentation), and argued that the judicial canon’s “fair value” clause concerning the awarding of excessive fees didn’t apply, because fair value in this case was subjective. So, was the Commission, which is charged only with investigating ethics breaches, right to extend its reach on the affidavit charge?
“I am absolutely convinced the Commission was off," said Goldman. "All Feinberg did that he was guilty of was not requiring proper affidavits. There was an aura, certainly, to the case. But as for what he actually did wrong, and how what he did wasn’t different from accepted practice, I think censure was appropriate. If anything, censure may have been a little harsh. As I think I said in the dissent, this was a matter of law.” “The Court of Appeals has said that judicial error and ethical misconduct are not mutually exclusive,” said Robert Tembeckjian, the Commission’s Administrator. “There are certain acts that may be errors of law, but since they violate a fundamental right, they may be misconduct, too.”
WHOSE DISCRETION?
Goldman raised another recent decision from which he’d dissented, that of former Troy City Court Judge Henry Bauer. The Commission removed Bauer for repeatedly, and even brazenly, setting excessive bail for defendants whose return to court he sought to ensure. The Bauer case had many twists and turns. They included his attorney’s allegation that the investigation was a plot instigated by the American Civil Liberties Union. “Bauer’s bail decisions were horrendous,” said Goldman. “But my own sense is that the Commission should tread very, very softly in areas of judicial discretion. Not that they should be excluded from taking action, but they should be very careful. Frankly, there’s a reasonable argument as to whether the Commission should have been going after a judge for bail decisions.”
Three dissenters on the Court of Appeals — which barely upheld the Commission’s verdict — said just that. “The Commission’s allegation that petitioner set excessive bails impinges on his discretion as a judge and is, in our opinion, outside the Commission's scope of authority,” wrote Judge Susan Philips Read. “I think the Commission wanted to reinforce the idea that bail was a good thing. They just didn’t understand what was going on in that man’s courtroom,” said Bauer’s attorney, Robert P. Roche, who maintains that each allegedly excessive bail was imposed upon defendants with histories of bail jumping. “Bail wasn’t the issue. The issue was whether he had a right to exercise judicial discretion. And the answer is, absolutely.
“How many Commissioners ever sat as a Justice of the Peace?” Roche continued “Two. They had no experience with bail issues. Half are retired Court of Appeals or Appellate Division Judges with no concept of what we’re talking about. “The Commission doesn’t have to prove jack. All they have to do is allege. And it doesn’t matter if you deny or not, because nothing and everything violates the code.” Tembeckjian has a different take. “A judge has to follow certain statutory guidelines in considering bail. If it is being misused for coercive or punitive purposes, that's a fundamental violation. No judge has total discretion to set bail however they see fit.”
CANON FODDER
For all the mind-numbing details in New York’s Code of Judicial Conduct, the five canons leave much to the imagination. This is particularly true of the infamous Canon Two, which states, “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s actions.”
“It’s a lot like that U.S. Supreme Court justice talking about pornography,” said one judge who has appeared before the Commission. “You’re supposed to know it when you see it.” Another veteran of Commission proceedings put the appearances shoe on the other foot, arguing that the agency’s notorious insularity combined with the canonical vagueness to create a strong sense of arbitrary enforcement on its foot. “Lawyers and judges have to be like Caesar’s wife — beyond suspicion,” said Bill Cade, an attorney who has represented judges before the Commission for more than 30 years. “I have a duty to avoid even the appearance of impropriety. Well, with every single person — from the investigator to the prosecutor to the hearing officer — being controlled by the Commission, that doesn’t pass the smell test.”
Members of the American Bar Association, at least nominally, agree on the judicial canon question. In 2007 an ABA panel tried to repeal a parallel standard on appearances from its Model Codes of Judicial Conduct, which most states have adopted to varying degrees. Although conduct commissions rarely enforce such violations in isolation, an ABA commission updating the code found the clause sufficiently vague and rife with enough due process deficiencies to fall short of being an enforceable rule. Judges — many of whom are comfortable with the latitude that the canon affords — rallied to its defense and kept it on the books. But none other than New York’s Commission Administrator Tembeckjian, then a member of the ABA’s code commission, resigned in protest.
“Typically, before you impose a punishment on someone, they have to receive notice of the kind of conduct subject to a sanction,” said Mark Harrison, the ABA commission’s chairman. “When you talk about sanctioning somebody for the appearance, that’s too vague to notify the actor beforehand about what he’ll be sanctioned for. Something I don’t think is improper may strike you as improper.” It’s not just the appearances standard itself that can complicate a judge’s self-discipline. In 2003, Northern District Judge David N. Hurd found much of New York’s judicial code to be unconstitutionally vague, including its restrictions on partisan political activity and the provisions directing judges to observe “high standards of conduct” and act “in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Hurd’s decision was eventually reversed by the U.S. Court of Appeals for the Second Circuit, which ruled that federal courts owed “proper deference to New York’s paramount interest in regulating its own judicial system.”
COMMISSION AS DEFENDANT
The Hurd ruling came in a civil rights lawsuit filed against the Commission by former Albany Supreme Court Justice Thomas J. Spargo. He claimed that the Commission’s investigation of him for alleged campaign improprieties showcased certain First Amendment fissures in the canon’s complex election law rules. As with the claims of inappropriate Commission incursions into judicial decision making, the Spargo election law critique demonstrates the difficulty of differentiating ethics breaches from legal quagmires. Spargo, a Republican and noted election law attorney, had represented an Albany District Attorney candidate in his successful recount of a contested election — while serving as a part-time Town Judge before whom the DA would eventually appear.
There was more.
He had given the keynote speech at a Conservative Party fundraiser before officially registering as a candidate for the Supreme Court seat he eventually won. He publicized his role as an attorney hired to vet the Bush-Gore recount in Florida in 2000. And he had given $5000 each to politically-connected consultants during his run for Supreme Court, in which he was eventually cross-endorsed at judicial nominating conventions. In many ways, the Spargo case demonstrates the paradoxes of the State’s election system, which, Commissioner Richard Emery noted in an opinion, “metastasize the appearance of judgeships for sale and judgeships under party control by obliviously punishing penny ante partisan and financial campaign activities — nipping around the edges of the real problem — while, at the same time, like the proverbial ostrich, we permit judicial candidates to engage in financial and partisan activities which stain the majesty of their function.”
Emery objected outright to the veracity of the other charges and doubted whether the Commission should have brought a case against Spargo in the first place. “To make matters worse, this Commission subjects judicial candidates to the State’s confusing and ill-conceived campaign rules during the very season when candidates are required to pander to the powerful. This baroque dichotomy between their sublime aspirations of judicial excellence and the ridiculous rules to which they have to conform while they pirouette to the demands of politicians and titans of the bar must bend the minds of the best and idealistic judicial candidates like a pretzel. We are destroying the very institution we are trying to save. And the public, for all its self-preservative ignorance of the specifics, knows well enough what is going on.” Unfortunately, the comments barely registered, as Spargo was accused of soliciting legal defense funds from the plaintiff’s bar — the charge that ultimately sealed his fate. (He declined to appeal the Commission’s removal verdict.) But a conversation Spargo says he had with Tembeckjian before he allegedly started soliciting funds sheds some light on the Commission’s psychology in such matters.
“I was told right from the beginning that there will be no compromise — I can resign,” said Spargo. "They ground it out for the whole process. That’s the reason we did the Judge Hurd application. My attorney kept asking, and I kept asking my attorney, ‘What’s the offer?’ and it was always . . . I can resign.” Spargo’s case alone, then, encapsulated a legion of the criticisms leveled at New York’s judicial conduct oversight. It is an often, if necessarily, opaque process, with all-or-nothing disciplinary choices driven by vague canons that leave both the regulators and the regulated wondering which end is up. And take note: New York’s is considered one of the best in the nation.
Judicial Reports by Jesse Sunenblick - jsunenblick@judicialstudies.com - June 18, 2008
Litigants are prevented, under the doctrine of judicial immunity, from suing jurists over the content of their decisions. But when it comes to discipline, the Commission on Judicial Conduct doesn't feel similarly constrained. Like the internal affairs division of a police department, the Commission on Judicial Conduct suffers criticism from both those who accuse it of permissiveness and others who claim it’s too harsh. But three recent, and contentious, removal cases highlight an additional area of controversy: whether the Commission threatens the core of judicial independence by infringing on jurisprudence itself.
The doctrine of judicial immunity precludes litigants from suing judges just because they don't like a given ruling. Shouldn’t the same protection extend to the realm of discipline? “There’s a fairly serious theoretical issue in terms of when does judicial discretion end, and when does it become misconduct,” said Lawrence Goldman, the Commission’s Chairman from 1990 to 2006. “Even though areas of law can cross ethical lines, concerning misconduct there should be a wide swath. Judges should be able to commit mistakes within reason — you don’t want a judge scared to death that he will face the commission if he rules a certain way.”’
MISTAKES VERSUS MISCONDUCT
In 2005, Goldman wrote what ranks among the Commission’s most fervent dissents, taking exception to the ouster of former Brooklyn Surrogate Court Judge Michael Feinberg for awarding sweetheart guardianship appointments to a friend. While the Court of Appeals unanimously upheld the Commission’s recommendation — at a time when the entire Brooklyn bench was under the microscope — Goldman argued that most of Feinberg’s errors fell within accepted practice.
Goldman agreed with the Commission’s main finding that Feinberg inexplicably neglected to obtain affidavits of legal services from Rosenthal. But as for the other charges — that Feinberg’s 8 percent flat fee topped an administrative (but not canonized) norm of 6 percent, and was excessive — Goldman doubted they rose to the level of misconduct. He pointed out that judges routinely exceeded the norm (albeit with proper documentation), and argued that the judicial canon’s “fair value” clause concerning the awarding of excessive fees didn’t apply, because fair value in this case was subjective. So, was the Commission, which is charged only with investigating ethics breaches, right to extend its reach on the affidavit charge?
“I am absolutely convinced the Commission was off," said Goldman. "All Feinberg did that he was guilty of was not requiring proper affidavits. There was an aura, certainly, to the case. But as for what he actually did wrong, and how what he did wasn’t different from accepted practice, I think censure was appropriate. If anything, censure may have been a little harsh. As I think I said in the dissent, this was a matter of law.” “The Court of Appeals has said that judicial error and ethical misconduct are not mutually exclusive,” said Robert Tembeckjian, the Commission’s Administrator. “There are certain acts that may be errors of law, but since they violate a fundamental right, they may be misconduct, too.”
WHOSE DISCRETION?
Goldman raised another recent decision from which he’d dissented, that of former Troy City Court Judge Henry Bauer. The Commission removed Bauer for repeatedly, and even brazenly, setting excessive bail for defendants whose return to court he sought to ensure. The Bauer case had many twists and turns. They included his attorney’s allegation that the investigation was a plot instigated by the American Civil Liberties Union. “Bauer’s bail decisions were horrendous,” said Goldman. “But my own sense is that the Commission should tread very, very softly in areas of judicial discretion. Not that they should be excluded from taking action, but they should be very careful. Frankly, there’s a reasonable argument as to whether the Commission should have been going after a judge for bail decisions.”
Three dissenters on the Court of Appeals — which barely upheld the Commission’s verdict — said just that. “The Commission’s allegation that petitioner set excessive bails impinges on his discretion as a judge and is, in our opinion, outside the Commission's scope of authority,” wrote Judge Susan Philips Read. “I think the Commission wanted to reinforce the idea that bail was a good thing. They just didn’t understand what was going on in that man’s courtroom,” said Bauer’s attorney, Robert P. Roche, who maintains that each allegedly excessive bail was imposed upon defendants with histories of bail jumping. “Bail wasn’t the issue. The issue was whether he had a right to exercise judicial discretion. And the answer is, absolutely.
“How many Commissioners ever sat as a Justice of the Peace?” Roche continued “Two. They had no experience with bail issues. Half are retired Court of Appeals or Appellate Division Judges with no concept of what we’re talking about. “The Commission doesn’t have to prove jack. All they have to do is allege. And it doesn’t matter if you deny or not, because nothing and everything violates the code.” Tembeckjian has a different take. “A judge has to follow certain statutory guidelines in considering bail. If it is being misused for coercive or punitive purposes, that's a fundamental violation. No judge has total discretion to set bail however they see fit.”
CANON FODDER
For all the mind-numbing details in New York’s Code of Judicial Conduct, the five canons leave much to the imagination. This is particularly true of the infamous Canon Two, which states, “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s actions.”
“It’s a lot like that U.S. Supreme Court justice talking about pornography,” said one judge who has appeared before the Commission. “You’re supposed to know it when you see it.” Another veteran of Commission proceedings put the appearances shoe on the other foot, arguing that the agency’s notorious insularity combined with the canonical vagueness to create a strong sense of arbitrary enforcement on its foot. “Lawyers and judges have to be like Caesar’s wife — beyond suspicion,” said Bill Cade, an attorney who has represented judges before the Commission for more than 30 years. “I have a duty to avoid even the appearance of impropriety. Well, with every single person — from the investigator to the prosecutor to the hearing officer — being controlled by the Commission, that doesn’t pass the smell test.”
Members of the American Bar Association, at least nominally, agree on the judicial canon question. In 2007 an ABA panel tried to repeal a parallel standard on appearances from its Model Codes of Judicial Conduct, which most states have adopted to varying degrees. Although conduct commissions rarely enforce such violations in isolation, an ABA commission updating the code found the clause sufficiently vague and rife with enough due process deficiencies to fall short of being an enforceable rule. Judges — many of whom are comfortable with the latitude that the canon affords — rallied to its defense and kept it on the books. But none other than New York’s Commission Administrator Tembeckjian, then a member of the ABA’s code commission, resigned in protest.
“Typically, before you impose a punishment on someone, they have to receive notice of the kind of conduct subject to a sanction,” said Mark Harrison, the ABA commission’s chairman. “When you talk about sanctioning somebody for the appearance, that’s too vague to notify the actor beforehand about what he’ll be sanctioned for. Something I don’t think is improper may strike you as improper.” It’s not just the appearances standard itself that can complicate a judge’s self-discipline. In 2003, Northern District Judge David N. Hurd found much of New York’s judicial code to be unconstitutionally vague, including its restrictions on partisan political activity and the provisions directing judges to observe “high standards of conduct” and act “in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Hurd’s decision was eventually reversed by the U.S. Court of Appeals for the Second Circuit, which ruled that federal courts owed “proper deference to New York’s paramount interest in regulating its own judicial system.”
COMMISSION AS DEFENDANT
The Hurd ruling came in a civil rights lawsuit filed against the Commission by former Albany Supreme Court Justice Thomas J. Spargo. He claimed that the Commission’s investigation of him for alleged campaign improprieties showcased certain First Amendment fissures in the canon’s complex election law rules. As with the claims of inappropriate Commission incursions into judicial decision making, the Spargo election law critique demonstrates the difficulty of differentiating ethics breaches from legal quagmires. Spargo, a Republican and noted election law attorney, had represented an Albany District Attorney candidate in his successful recount of a contested election — while serving as a part-time Town Judge before whom the DA would eventually appear.
There was more.
He had given the keynote speech at a Conservative Party fundraiser before officially registering as a candidate for the Supreme Court seat he eventually won. He publicized his role as an attorney hired to vet the Bush-Gore recount in Florida in 2000. And he had given $5000 each to politically-connected consultants during his run for Supreme Court, in which he was eventually cross-endorsed at judicial nominating conventions. In many ways, the Spargo case demonstrates the paradoxes of the State’s election system, which, Commissioner Richard Emery noted in an opinion, “metastasize the appearance of judgeships for sale and judgeships under party control by obliviously punishing penny ante partisan and financial campaign activities — nipping around the edges of the real problem — while, at the same time, like the proverbial ostrich, we permit judicial candidates to engage in financial and partisan activities which stain the majesty of their function.”
Emery objected outright to the veracity of the other charges and doubted whether the Commission should have brought a case against Spargo in the first place. “To make matters worse, this Commission subjects judicial candidates to the State’s confusing and ill-conceived campaign rules during the very season when candidates are required to pander to the powerful. This baroque dichotomy between their sublime aspirations of judicial excellence and the ridiculous rules to which they have to conform while they pirouette to the demands of politicians and titans of the bar must bend the minds of the best and idealistic judicial candidates like a pretzel. We are destroying the very institution we are trying to save. And the public, for all its self-preservative ignorance of the specifics, knows well enough what is going on.” Unfortunately, the comments barely registered, as Spargo was accused of soliciting legal defense funds from the plaintiff’s bar — the charge that ultimately sealed his fate. (He declined to appeal the Commission’s removal verdict.) But a conversation Spargo says he had with Tembeckjian before he allegedly started soliciting funds sheds some light on the Commission’s psychology in such matters.
“I was told right from the beginning that there will be no compromise — I can resign,” said Spargo. "They ground it out for the whole process. That’s the reason we did the Judge Hurd application. My attorney kept asking, and I kept asking my attorney, ‘What’s the offer?’ and it was always . . . I can resign.” Spargo’s case alone, then, encapsulated a legion of the criticisms leveled at New York’s judicial conduct oversight. It is an often, if necessarily, opaque process, with all-or-nothing disciplinary choices driven by vague canons that leave both the regulators and the regulated wondering which end is up. And take note: New York’s is considered one of the best in the nation.
Wednesday, June 18, 2008
Ex-Milberg Partners Sue Crooked Colleagues
Ex-Partners Sue Crooked Colleagues They Say Used Them as a "Human Shield"
The New York Law Journal by Anthony Lin - June 18, 2008
Two former Milberg partners have sued the law firm's founder, Melvyn I. Weiss, and the three other firm leaders recently convicted of participating in a scheme that paid kickbacks to class action plaintiffs, claiming the four men's illegal conduct constituted a breach of their fiduciary duty to their partners.
The suits, which came just one day after federal prosecutors agreed to drop criminal charges against Milberg itself in exchange for the payment of $75 million in fines (NYLawyer, June 17), could be the beginning of a tide of litigation against Mr. Weiss, William S. Lerach, David J. Bershad and Steven G. Schulman, the former Milberg name partners who have pleaded guilty over the past several months to orchestrating the kickback scheme. J. Douglas Richards, one of the two ex-partners to sue yesterday, predicted as much in an e-mail to the Law Journal. "Private litigation by those injured by the misconduct is just beginning," he said. Indeed, Milberg management committee member Sanford Dumain said in interviews Monday with the Law Journal and other publications the firm itself was exploring litigation against its former leaders. Mr. Richards and Michael M. Buchman, both former antitrust partners who left Milberg together in January 2007, filed separate pro se complaints yesterday in Manhattan federal court. Mr. Buchman named all four of the former name partners as defendants but Mr. Richards excluded Mr. Bershad. Mr. Richards declined to discuss this aspect of the case, but the exclusion is presumably to preserve diversity jurisdiction, as both Messrs. Richards and Bershad are New Jersey residents. Each suit is asking for $3 million in damages.
The firm leaders' scheme spanned 25 years and involved the payment of millions of dollars in kickbacks to individuals who agreed to serve as named plaintiffs in class action suits filed by Milberg. Such kickbacks, which expedited the firm's filing of suits, are illegal because named plaintiffs are not permitted to have interests separate from other class members. Kickbacks were paid in 165 cases that ultimately garnered Milberg $239 million in legal fees. Federal prosecutors in Los Angeles have said the conspiring partners took steps to hide their illegal activities from other lawyers at the firm. Both of the suits filed yesterday argue the conspirators owed a duty to their innocent partners to come clean to the government about their illegal activities. "Instead, Defendants refused to acknowledge the truth and continued to misrepresent the facts to government authorities, thereby putting Milberg Weiss as a firm, and the financial and professional interests of Plaintiff and other innocent Milberg Weiss partners in grave jeopardy," Mr. Richards said in his complaint.
Mr. Buchman said in a statement yesterday that the conspiring partners used their colleagues as "human shields" as prosecutors closed in. In his complaint, Mr. Buchman noted Mr. Weiss and the others continued to make defiant statements, both internally and outside the firm via the milbergweissjustice.com Web site they launched, almost until the very end. Both men claim the firm's indictment specifically injured them when it was cited by opposing counsel as grounds for their disqualification in two cases in which they were serving together as lead class counsel. The federal judge who disqualified Messr. Richards and Buchman in one instance noted there was no suspicion of misconduct against either of them personally but that "a clean break is best" since the firm's future was uncertain. Messrs. Richards and Buchman claim they had to withdraw from the firm to maintain their practices. Both are now partners at the New York firm of Pomerantz, Haudek, Block, Grossman & Gross.
The two had led Milberg's antitrust practice, bringing cases over the costs of prescription drugs, Microsoft software and auction house fees. They also participated in the massive case against MasterCard and Visa that produced the largest antitrust settlement in history. Prior to joining Milberg in 2000, Mr. Richards was former deputy general counsel of the Commodity Futures Trading Commission and a former litigation partner at O'Sullivan Graev & Karabell, the New York firm acquired by Los Angeles-based O'Melveny & Myers in 2002. Mr. Buchman, who joined Milberg Weiss in 1996, was formerly an assistant attorney general in the antitrust bureau of the New York Attorney General's Office. Lawyers for Messrs. Weiss, Lerach and Schulman did not return calls for comment yesterday.
The New York Law Journal by Anthony Lin - June 18, 2008
Two former Milberg partners have sued the law firm's founder, Melvyn I. Weiss, and the three other firm leaders recently convicted of participating in a scheme that paid kickbacks to class action plaintiffs, claiming the four men's illegal conduct constituted a breach of their fiduciary duty to their partners.
The suits, which came just one day after federal prosecutors agreed to drop criminal charges against Milberg itself in exchange for the payment of $75 million in fines (NYLawyer, June 17), could be the beginning of a tide of litigation against Mr. Weiss, William S. Lerach, David J. Bershad and Steven G. Schulman, the former Milberg name partners who have pleaded guilty over the past several months to orchestrating the kickback scheme. J. Douglas Richards, one of the two ex-partners to sue yesterday, predicted as much in an e-mail to the Law Journal. "Private litigation by those injured by the misconduct is just beginning," he said. Indeed, Milberg management committee member Sanford Dumain said in interviews Monday with the Law Journal and other publications the firm itself was exploring litigation against its former leaders. Mr. Richards and Michael M. Buchman, both former antitrust partners who left Milberg together in January 2007, filed separate pro se complaints yesterday in Manhattan federal court. Mr. Buchman named all four of the former name partners as defendants but Mr. Richards excluded Mr. Bershad. Mr. Richards declined to discuss this aspect of the case, but the exclusion is presumably to preserve diversity jurisdiction, as both Messrs. Richards and Bershad are New Jersey residents. Each suit is asking for $3 million in damages.
The firm leaders' scheme spanned 25 years and involved the payment of millions of dollars in kickbacks to individuals who agreed to serve as named plaintiffs in class action suits filed by Milberg. Such kickbacks, which expedited the firm's filing of suits, are illegal because named plaintiffs are not permitted to have interests separate from other class members. Kickbacks were paid in 165 cases that ultimately garnered Milberg $239 million in legal fees. Federal prosecutors in Los Angeles have said the conspiring partners took steps to hide their illegal activities from other lawyers at the firm. Both of the suits filed yesterday argue the conspirators owed a duty to their innocent partners to come clean to the government about their illegal activities. "Instead, Defendants refused to acknowledge the truth and continued to misrepresent the facts to government authorities, thereby putting Milberg Weiss as a firm, and the financial and professional interests of Plaintiff and other innocent Milberg Weiss partners in grave jeopardy," Mr. Richards said in his complaint.
Mr. Buchman said in a statement yesterday that the conspiring partners used their colleagues as "human shields" as prosecutors closed in. In his complaint, Mr. Buchman noted Mr. Weiss and the others continued to make defiant statements, both internally and outside the firm via the milbergweissjustice.com Web site they launched, almost until the very end. Both men claim the firm's indictment specifically injured them when it was cited by opposing counsel as grounds for their disqualification in two cases in which they were serving together as lead class counsel. The federal judge who disqualified Messr. Richards and Buchman in one instance noted there was no suspicion of misconduct against either of them personally but that "a clean break is best" since the firm's future was uncertain. Messrs. Richards and Buchman claim they had to withdraw from the firm to maintain their practices. Both are now partners at the New York firm of Pomerantz, Haudek, Block, Grossman & Gross.
The two had led Milberg's antitrust practice, bringing cases over the costs of prescription drugs, Microsoft software and auction house fees. They also participated in the massive case against MasterCard and Visa that produced the largest antitrust settlement in history. Prior to joining Milberg in 2000, Mr. Richards was former deputy general counsel of the Commodity Futures Trading Commission and a former litigation partner at O'Sullivan Graev & Karabell, the New York firm acquired by Los Angeles-based O'Melveny & Myers in 2002. Mr. Buchman, who joined Milberg Weiss in 1996, was formerly an assistant attorney general in the antitrust bureau of the New York Attorney General's Office. Lawyers for Messrs. Weiss, Lerach and Schulman did not return calls for comment yesterday.