Convicted Ex-Name Partner Makes Bid for Home Confinement
The National Law Journal by Amanda Bronstad - November 14, 2008
LOS ANGELES – Terry Christensen, the lawyer who was convicted this summer for hiring a private investigator to wiretap his opponent in a high profile child support case, claiming he had an "aberrational, isolated exercise of bad judgment," is seeking a probationary sentence of 10 months to be carried out in home confinement. The request, outlined in a sentencing memorandum filed on Thursday, mimics the recommendation of the U.S. Probation Office, which also suggested a fine of $30,000, and contrasts significantly with the position of federal prosecutors. On Monday, in their own sentencing memorandum, prosecutors demanded that Christensen, who faced trial alongside the private investigator, celebrity sleuth Anthony Pellicano, serve three years in federal prison and pay a $500,000 fine due to his "brazen efforts to corrupt and subvert the legal system."
The government claims that Christensen paid more than $100,000 to Pellicano to wiretap the phone lines of Lisa Bonder Kerkorian, the ex-wife of billionaire Kirk Kerkorian, in a 2002 child support case involving her daughter, Kira. Bonder Kerkorian and Kerkorian were married for 28 days. Christensen is scheduled to be sentenced Nov. 24; Pellicano, who was convicted on 78 counts of various federal charges related to the wiretapping, is scheduled to be sentenced on Dec. 15, along with several other defendants. In a letter to U.S. District Judge Dale Fischer, of the Central District of California, Christensen said he regretted his decision to hire Pellicano. "Looking back, when I was approached by Mr. Pellicano, I should never have agreed to hire him," Christensen wrote. "No matter how I look at this, from whatever angle, I cannot escape this lapse of judgment on my part." Christensen, who was indicted in 2006, said his recent resignation as managing partner of the firm, now called Glaser, Weil, Fink, Jacobs & Shapiro, and the removal of his name from the masthead, was intended to help its lawyers and staff move past the criminal case.
More than 70 letters from friends, family members, law firm colleagues and clients were filed on his behalf. Among them are: Norman Brownstein, chairman of Denver-based Brownstein Hyatt Farber Schreck; former Secretary of State Alexander M. Haig; retired U.S. District Judge Dickran Tevrizian, of the Central District of California; Ronald J. Nessim, a principal at Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg; Thomas R. Malcolm, a partner at Jones Day; and Robert K. Rasmussen, dean, and Matthew Spitzer, former dean, of the University of Southern California (USC) School of Law, Christensen's alma mater. "The legal and business community has paid close attention to this case, and the fall of Terry Christensen has become a terrifying cautionary tale for others," Spitzer wrote in his letter. Several of the letters come from current and former board members and senior executives of MGM Mirage, Metro-Goldwyn-Mayer Inc. and Tracinda Corp., Kerkorian's firm. Christensen, who has represented some of the nation's largest movie studios, started his own law firm in 1988. The firm now has 110 attorneys.
In his sentencing memo, Christensen said he is on interim suspension by the State Bar of California. "He will likely never again practice law and his ability to earn an income has been vastly reduced, if not eliminated altogether," the memo states. Prosecutors, in their sentencing memo, called the Probation Office's recommendation "reckless, uninformed, and completely inappropriate." Their memo states that Christensen had managed the scheme with Pellicano to wiretap Bonder Kerkorian's phones and, as an attorney, held a higher level position of trust that warranted prison time. "This is not a case of a defendant who committed a crime and who coincidentally happened to be an attorney," prosecutors said. "To the contrary, this case involves a defendant whose criminal activities were directly intertwined with and inextricable from his work as an attorney."
Sunday, November 16, 2008
Saturday, November 15, 2008
Editorial: Drain the Ethics Cesspool
Corruption Bragging Rights Tops Red Sox-Yankee Debate
WITH DRAMATIC exceptions, such as recent FBI photos allegedly showing state Senator Dianne Wilkerson palming cash bribes in a restaurant, corruption in Massachusetts is well-shielded. Governor Patrick's new task force on public integrity will need to push aside a lot of underbrush on Beacon Hill to uncover the rot. Suspicion that some officials are putting their own interests above those of the public are probably greater now than at any time since 1977, when former state senators Joseph DiCarlo of Revere and Ronald MacKenzie of Burlington were convicted in federal court of shaking down a consulting firm overseeing the construction of UMass-Boston. Allegations of wrongdoing at the time reached all the way to the offices of the House speaker and Senate president.
Today, key legislative leaders are again under a cloud. The state inspector general reported recently that three close associates of House Speaker Salvatore DiMasi received more than $1.8 million in unreported lobbying fees from the software firm Cognos. DiMasi, meanwhile, is blocking efforts by the state Ethics Commission to determine what, if any, role he may have played in steering contracts to Cognos. Another high-profile legislator, House majority leader John Rogers, fell under the scrutiny of the Office of Campaign and Political Finance regarding payments that a political adviser made on Rogers's vacation home. Toss in an FBI complaint indicating that more elected officials may be linked to Wilkerson's alleged extortion of undercover agents posing as developers, and the view of public servants grows dimmer still. The 12-person task force, chaired by the governor's chief legal counsel, Ben Clements, will meet for the first time next week. It has less than 60 days to make recommendations on how to strengthen ethics and lobbying laws. That may not be enough time to address needed changes in legislative rules and chairmanship appointments that concentrate power and foster too-cozy relationships between top lawmakers and lobbyists. But the panel should have time to address the more obvious weaknesses in the system.
Straightforward fixes
The maximum penalties for violations of conflict-of-interest and financial disclosure laws are a joke - just $2,000 per violation. They should be raised to at least $10,000 per violation. The $5,000 criminal penalty for bribery, which hasn't changed since 1962, should be raised to at least $25,000. Requiring public officials to report income, property values, debts forgiven, and other financial information by actual dollar amount instead of in broad ranges would also allow more sunshine into the system. Corruption and conflicts of interest not only undermine public confidence but bump up the cost of government. Politically wired firms with little fear of competition, for example, are not likely to be cost-conscious or adhere to basic bidding rules. The task force should explore efforts in other states, such as Wisconsin, to provide searchable databases that reveal the nuts and bolts of state contracts, including lobbyist activities. But nothing would likely get the attention of legislators as much as a recommendation on ways to cut the pensions of those who violate ethics laws. Currently, it takes a criminal conviction to put a public official's pension at risk. But establishing a link between pensions and civil infractions of the kind enforced by the Ethics Commission would shake up complacent officials. Increasing the statute of limitations on ethical violations from three to five years might also keep public officials on their toes.
Deeper problems
Sixty days surely won't be long enough to deal with all the scandals sapping the public's confidence in their supposed servants. The ethical deficiency extends far beyond Beacon Hill. Just look at the federal investigation of suspected disability pension fraud by Boston firefighters. But Patrick's task force can at least begin to contemplate the big picture. Fortunately, the panel includes several former corruption prosecutors known as heavy hitters. That should level the field for an overmatched public. Legislators come out swinging when defending themselves against possible corruption charges, and they know all the angles. To quiet the public's concern about bid rigging in the late 1970s, the Legislature created an inspector general's office. But it shielded lawmakers from the IG's subpoena power. It's typical of the way the game plays out. Ethics investigators sometimes refer to cases as "pre-Scaccia" and "post-Scaccia," a reference to state Representative Angelo Scaccia, who tangled with the Ethics Commission in the 1990s for taking free meals and golf games from lobbyists. Scaccia pushed back, leading to a Supreme Judicial Court ruling requiring a direct link between a gift and a specific act, such as a vote, to bring a case under the state's illegal gratuity law. It's an unrealistically high bar that does not factor in how lobbyists insinuate themselves over time into the legislative process.
DiMasi is claiming legislative immunity in his refusal to provide records to the Ethics Commission on the Cognos matter. The obscure "speech and debate" clause of the state constitution offers lawmakers broad protections against prosecution for their legislative acts. But just how broad? Should this long-dormant clause bar a civil enforcement agency like the Ethics Commission from investigating schemes to defraud the public? The task force should consider these and other questions. Any substantive recommendations by the task force will need to go through the Legislature. And lawmakers have shown little willingness in the past to shine a light on themselves, at least when it comes to ethics. Some public values can't be legislated. Ultimately, there might be only one way to disinfect Beacon Hill: elect better people.
Indicted NY Justice Winner Now Booked for DWI
Accused man can be Edinburg judge, for now
The Schenectady Daily Gazette by Kathy Bowen - November 13, 2008
EDINBURG, NEW YORK — A newly elected town justice will not be able to take the job in January if he is convicted of any of the four felony charges against him, according to state law. But a state official said that until he is convicted, he could hold office. Brian Kedik, 32, of Edinburg, was elected to a town justice post on Nov. 4. On Tuesday, he was charged with felony driving while intoxicated, felony driving with a suspended license and speeding in Saratoga Springs. He was arraigned in Saratoga Springs City Court and released on $1,500 bail to await future court action.Last month, he was indicted by a Schenectady County grand jury on charges of forgery and grand larceny for allegedly endorsing and cashing a check belonging to his former in-laws, according to Assistant District Attorney William Sanderson. At that time, Kedik said the matter was the result of “an ugly divorce” and he looked forward to explaining his side of the story in court. He was arraigned in Schenectady County Court and released without bail. Paul Toomey of the state’s Town and Village Resource Center trains justices before they take office, and he said Wednesday that state law prohibits anyone convicted of a felony from holding office as a justice. “Town Law 31, subsection 5, is clear that any person convicted of a felony in the state of New York or of a crime in another state that would rise to the level of felony in New York will be permanently ineligible to be a town justice,” Toomey said. “The statute is very clear on the word ‘convicted.’ ” He said anyone who is charged but not yet convicted would be eligible to hold the office. The state Commission on Judicial Conduct investigates reports of illegal or unethical behavior by judges. Commission spokeswoman Beth Bar said she could not comment on whether an investigation has begun into allegations against Kedik. “Our investigations, by law, are confidential,” she said. “I would not be able to disclose whether the commission is conducting an investigation.” She said if a judge is sanctioned, the matter would be made public by the commission. Punishments meted out by the commission can range from a simple censure or official reprimand to removal from the bench. Among 85 recent decisions to censure by the commission, more than a dozen deal with judges accused of driving while intoxicated or under the influence of alcohol, even if they were not convicted. In a 2005 decision, the commission censured Justice Donna Mills of state Supreme Court in Bronx County, even though she was acquitted of the charge. “The commission has publicly disciplined numerous judges who have been convicted of alcohol-related driving infractions. In the wake of increased recognition of the dangers of driving while under the influence of alcohol and the toll it exacts on society, alcohol-related driving misbehavior must be regarded with particular severity — even, as here, where respondent was not convicted of any offense,” the commission wrote. In the Mills case, the judge refused to take a breath test, but police said she admitted that it was inappropriate for her to drive after consuming as much alcohol as she did that evening. Toomey is an instructor for classes taken by justices-elect and said the next class will be held Nov. 14. As of Wednesday, Kedik had not registered for the class next week, Toomey said.
Schenectady Daily Gazette Editorial: Justice-elect in Edinburg should quit now - November 14, 2008
Edinburg Town Justice-elect Brian Kedik would do all parties concerned — including himself — a favor by not showing up for that training program being given today for new town justices by the state’s Town and Village Resource Center. His arrest Tuesday for felony drunken driving and operating on a suspended license indicate he is unfit to dispense justice in Edinburg or anywhere else — and that’s not even taking into account another matter last month, in which he was indicted by a Schenectady County grand jury for allegedly forging and cashing a check that belonged to his former in-laws. Kedik blamed the forged check allegation, which dated back to 2004, on “an ugly divorce,” and said he was looking forward to telling his side of the story in court. Perhaps there were extenuating circumstances in the case, but a second-offense DWI and driving with a suspended license are pretty hard to explain away — and, frankly, are inexcusable for a person whose primary responsibility is dispensing justice in similar cases.
Kedik is, of course, legally innocent till proven guilty on all charges, but if there’s even a shred of truth to them, he should fess up immediately and politely inform the proper authorities that they should look for someone else to assume his post come January. To do otherwise would make a mockery of the justice system. Undoubtedly, the state Commission on Judicial Conduct is already watching what happens, but Kedik could spare it a lot of effort, and himself a lot of embarrassment, by withdrawing if the charges are true.
Justice winner faces DWI charge
The Albany Times Union by Christen Gowan - November 13, 2008
SARATOGA SPRINGS — The newly elected Edinburg town justice has been arrested on a charge of felony driving while intoxicated. Brian Kedik, 32, was stopped about 1 p.m. Tuesday by State Park Police who said he was speeding on the Avenue of the Pines. He was later charged with felony driving while intoxicated and aggravated unlicensed operation of a motor vehicle, also a felony, authorities said. After being arraigned in Saratoga Springs City Court, Kedik was sent to the Saratoga County Jail in lieu of $1,500 bail. Kedik was also recently indicted in Schenectady County Court on grand larceny and forgery charges for allegedly stealing a check from his former mother-in-law in 2004. Kedik was elected justice in an unopposed race on Nov. 4.
The Schenectady Daily Gazette by Kathy Bowen - November 13, 2008
EDINBURG, NEW YORK — A newly elected town justice will not be able to take the job in January if he is convicted of any of the four felony charges against him, according to state law. But a state official said that until he is convicted, he could hold office. Brian Kedik, 32, of Edinburg, was elected to a town justice post on Nov. 4. On Tuesday, he was charged with felony driving while intoxicated, felony driving with a suspended license and speeding in Saratoga Springs. He was arraigned in Saratoga Springs City Court and released on $1,500 bail to await future court action.Last month, he was indicted by a Schenectady County grand jury on charges of forgery and grand larceny for allegedly endorsing and cashing a check belonging to his former in-laws, according to Assistant District Attorney William Sanderson. At that time, Kedik said the matter was the result of “an ugly divorce” and he looked forward to explaining his side of the story in court. He was arraigned in Schenectady County Court and released without bail. Paul Toomey of the state’s Town and Village Resource Center trains justices before they take office, and he said Wednesday that state law prohibits anyone convicted of a felony from holding office as a justice. “Town Law 31, subsection 5, is clear that any person convicted of a felony in the state of New York or of a crime in another state that would rise to the level of felony in New York will be permanently ineligible to be a town justice,” Toomey said. “The statute is very clear on the word ‘convicted.’ ” He said anyone who is charged but not yet convicted would be eligible to hold the office. The state Commission on Judicial Conduct investigates reports of illegal or unethical behavior by judges. Commission spokeswoman Beth Bar said she could not comment on whether an investigation has begun into allegations against Kedik. “Our investigations, by law, are confidential,” she said. “I would not be able to disclose whether the commission is conducting an investigation.” She said if a judge is sanctioned, the matter would be made public by the commission. Punishments meted out by the commission can range from a simple censure or official reprimand to removal from the bench. Among 85 recent decisions to censure by the commission, more than a dozen deal with judges accused of driving while intoxicated or under the influence of alcohol, even if they were not convicted. In a 2005 decision, the commission censured Justice Donna Mills of state Supreme Court in Bronx County, even though she was acquitted of the charge. “The commission has publicly disciplined numerous judges who have been convicted of alcohol-related driving infractions. In the wake of increased recognition of the dangers of driving while under the influence of alcohol and the toll it exacts on society, alcohol-related driving misbehavior must be regarded with particular severity — even, as here, where respondent was not convicted of any offense,” the commission wrote. In the Mills case, the judge refused to take a breath test, but police said she admitted that it was inappropriate for her to drive after consuming as much alcohol as she did that evening. Toomey is an instructor for classes taken by justices-elect and said the next class will be held Nov. 14. As of Wednesday, Kedik had not registered for the class next week, Toomey said.
Schenectady Daily Gazette Editorial: Justice-elect in Edinburg should quit now - November 14, 2008
Edinburg Town Justice-elect Brian Kedik would do all parties concerned — including himself — a favor by not showing up for that training program being given today for new town justices by the state’s Town and Village Resource Center. His arrest Tuesday for felony drunken driving and operating on a suspended license indicate he is unfit to dispense justice in Edinburg or anywhere else — and that’s not even taking into account another matter last month, in which he was indicted by a Schenectady County grand jury for allegedly forging and cashing a check that belonged to his former in-laws. Kedik blamed the forged check allegation, which dated back to 2004, on “an ugly divorce,” and said he was looking forward to telling his side of the story in court. Perhaps there were extenuating circumstances in the case, but a second-offense DWI and driving with a suspended license are pretty hard to explain away — and, frankly, are inexcusable for a person whose primary responsibility is dispensing justice in similar cases.
Kedik is, of course, legally innocent till proven guilty on all charges, but if there’s even a shred of truth to them, he should fess up immediately and politely inform the proper authorities that they should look for someone else to assume his post come January. To do otherwise would make a mockery of the justice system. Undoubtedly, the state Commission on Judicial Conduct is already watching what happens, but Kedik could spare it a lot of effort, and himself a lot of embarrassment, by withdrawing if the charges are true.
Justice winner faces DWI charge
The Albany Times Union by Christen Gowan - November 13, 2008
SARATOGA SPRINGS — The newly elected Edinburg town justice has been arrested on a charge of felony driving while intoxicated. Brian Kedik, 32, was stopped about 1 p.m. Tuesday by State Park Police who said he was speeding on the Avenue of the Pines. He was later charged with felony driving while intoxicated and aggravated unlicensed operation of a motor vehicle, also a felony, authorities said. After being arraigned in Saratoga Springs City Court, Kedik was sent to the Saratoga County Jail in lieu of $1,500 bail. Kedik was also recently indicted in Schenectady County Court on grand larceny and forgery charges for allegedly stealing a check from his former mother-in-law in 2004. Kedik was elected justice in an unopposed race on Nov. 4.
Friday, November 14, 2008
Lack of Leadership Embarrasses State's Judiciary, Again
Albany Panel Dismisses Judicial Pay Suit
The New York Law Journal by Joel Stashenko - November 14, 2008
ALBANY - An upstate appeals panel yesterday dismissed a suit filed by judges seeking to force the state to grant them their first pay raise since 1999. While its decision in Maron v. Silver, 504084, was peppered with words such as "deplorable" to describe the raise drought, the Appellate Division, Third Department, nevertheless decided 4-1 that the judges lacked grounds to bring their claims for higher compensation. The majority dismissed the remaining two grounds recognized by Acting Supreme Court Justice Thomas J. McNamara (See Profile) last year, that the lack of a raise imperiled judicial independence by driving good judges from the bench and that the refusal to increase judges' salaries was in retaliation for their rulings on controversial issues such as ordering higher school aid for New York City (NYLJ, Dec. 3, 2007). The majority bought neither argument yesterday.
"Although petitioners' claims regarding an undisclosed number of resignations suggest that judges are experiencing a lamentable personal hardship due to the Legislature's inaction, that claim cannot be equated with an assertion that the Judiciary will not continue to function as in the past," Justice Thomas E. Mercure wrote for the majority. As for the "highly speculative" contention that the Legislature was holding back on a pay increase because of unpopular rulings from the bench, the appellate panel said there was an absence of affirmative acts by lawmakers "from which we could discern an intent to react to the referenced decisions regarding the separation of powers disputes between the Legislature and Governor, capital punishment, school funding and a case involving the election of a state senator." The panel continued, "To merely state the existence of this threat, without alleging any support whatsoever for the assertion of displeasure on the part of the Legislature or evidence of any actions taken to reduce judicial salaries, is merely to acknowledge the inherent tension in our tripartite system of government." The court also reviewed, and rejected, other arguments made by the judges, such as their lack of a raise violating the compensation clause of the state Constitution because of the ground lost to inflation in the past decade and the argument that the judges should get the $69.5 million included in the 2006-07 state budget for raises, even though the Legislature and governor never approved an authorization specifying that the money be spent on the judges. The money was appropriated but could not be spent unless the governor and lawmakers approved a subsequent chapter amendment to the state budget that was to have spelled out that the funding was for judicial pay. That amendment was never approved. "If the Legislature had intended the budget to be self-executing regarding compensation adjustment, there would have been no need to reference 'a chapter of the laws of 2006'" in the appropriations portion of the budget, Justice Mercure wrote. Justices Robert S. Rose, John A. Lahtinen and Anthony T. Kane joined the majority.
Although he permitted the lawsuit to proceed on the judicial independence argument, Justice McNamara suggested that the plaintiffs would face an uphill battle. "Given that legislators and senior Executive branch officials have also been denied raises [since 1999], plaintiffs face a difficult task in establishing that the failure to provide salary increases is designed to influence the Judiciary," Justice McNamara wrote. "Even showing that political branch benign neglect is destructive of judicial independence presents a difficult task." However, Justice Karen K. Peters wrote in her Third Department dissent yesterday that judicial independence is compromised by the need to get approval for a raise from the other two branches of government. She also argued that the majority was requiring the petitioners to meet too strict a burden at this stage of their litigation. "Since this matter involves a motion to dismiss for failure to state a cause of action . . . we must liberally construe the pleadings, grant petitioners the benefit of each favorable inference, and limit our review to a determination as to whether the facts they allege fall within a knowable legal theory," Justice Peters wrote. She continued, "Given the early prediscovery phase of this litigation, I agree with Supreme Court that petitioners sufficiently pleaded a viable separation of powers claim." Justice Peters seemed the most skeptical judge about the state's case when the panel heard oral arguments in September (NYLJ, Sept. 4). At one point, she asked state attorney Richard H. Dolan whether judges could not be held "hostage for decades" by Legislatures and governors unwilling to grant them increases.
Mr. Dolan replied that judges on some state courts, especially the Court of Appeals, have gone decades in the past without pay raises. The suit before the Third Department yesterday was brought by Nassau County Court Judge Edward A. Maron (See Profile), Supreme Court Justice Arthur Schack of Brooklyn (See Profile) and former Supreme Court Justice Joseph A. DeMaro of Brooklyn. It is one of three suits brought on behalf of the judiciary seeking higher pay and the first to reach the Appellate Division. A second suit, Larabee v. Governor, 112301/07, is scheduled to be heard by a First Department panel on Tuesday. In that case, Supreme Court Justice Edward H. Lehner (See Profile) ruled that lawmakers and the governor had unconstitutionally linked passage of a judicial pay raise to unrelated public policy issues, such as campaign finance reform or a pay raise for lawmakers themselves (NYLJ, June 11). A third suit, Kaye v. Silver, 400763/08, is also before Justice Lehner in Manhattan. He is considering a motion for summary judgment filed by Chief Judge Judith S. Kaye and motions to dismiss the action from the governor and legislative leaders. Steven Cohn of Carle Place represented the plaintiffs in Maron v. Silver, the Third Department case. "I am very disappointed with the ruling," Mr. Cohn said last night in an interview. "We are definitely going to appeal." He added, "We hope the First Department takes a different view [in Larabee]." Assistant Solicitor General Julie M. Sheridan and Mr. Dolan, of Schlam, Stone & Dolan, argued for the governor and legislative leaders. Joel.Stashenko@incisivemedia.com
The New York Law Journal by Joel Stashenko - November 14, 2008
ALBANY - An upstate appeals panel yesterday dismissed a suit filed by judges seeking to force the state to grant them their first pay raise since 1999. While its decision in Maron v. Silver, 504084, was peppered with words such as "deplorable" to describe the raise drought, the Appellate Division, Third Department, nevertheless decided 4-1 that the judges lacked grounds to bring their claims for higher compensation. The majority dismissed the remaining two grounds recognized by Acting Supreme Court Justice Thomas J. McNamara (See Profile) last year, that the lack of a raise imperiled judicial independence by driving good judges from the bench and that the refusal to increase judges' salaries was in retaliation for their rulings on controversial issues such as ordering higher school aid for New York City (NYLJ, Dec. 3, 2007). The majority bought neither argument yesterday.
"Although petitioners' claims regarding an undisclosed number of resignations suggest that judges are experiencing a lamentable personal hardship due to the Legislature's inaction, that claim cannot be equated with an assertion that the Judiciary will not continue to function as in the past," Justice Thomas E. Mercure wrote for the majority. As for the "highly speculative" contention that the Legislature was holding back on a pay increase because of unpopular rulings from the bench, the appellate panel said there was an absence of affirmative acts by lawmakers "from which we could discern an intent to react to the referenced decisions regarding the separation of powers disputes between the Legislature and Governor, capital punishment, school funding and a case involving the election of a state senator." The panel continued, "To merely state the existence of this threat, without alleging any support whatsoever for the assertion of displeasure on the part of the Legislature or evidence of any actions taken to reduce judicial salaries, is merely to acknowledge the inherent tension in our tripartite system of government." The court also reviewed, and rejected, other arguments made by the judges, such as their lack of a raise violating the compensation clause of the state Constitution because of the ground lost to inflation in the past decade and the argument that the judges should get the $69.5 million included in the 2006-07 state budget for raises, even though the Legislature and governor never approved an authorization specifying that the money be spent on the judges. The money was appropriated but could not be spent unless the governor and lawmakers approved a subsequent chapter amendment to the state budget that was to have spelled out that the funding was for judicial pay. That amendment was never approved. "If the Legislature had intended the budget to be self-executing regarding compensation adjustment, there would have been no need to reference 'a chapter of the laws of 2006'" in the appropriations portion of the budget, Justice Mercure wrote. Justices Robert S. Rose, John A. Lahtinen and Anthony T. Kane joined the majority.
Although he permitted the lawsuit to proceed on the judicial independence argument, Justice McNamara suggested that the plaintiffs would face an uphill battle. "Given that legislators and senior Executive branch officials have also been denied raises [since 1999], plaintiffs face a difficult task in establishing that the failure to provide salary increases is designed to influence the Judiciary," Justice McNamara wrote. "Even showing that political branch benign neglect is destructive of judicial independence presents a difficult task." However, Justice Karen K. Peters wrote in her Third Department dissent yesterday that judicial independence is compromised by the need to get approval for a raise from the other two branches of government. She also argued that the majority was requiring the petitioners to meet too strict a burden at this stage of their litigation. "Since this matter involves a motion to dismiss for failure to state a cause of action . . . we must liberally construe the pleadings, grant petitioners the benefit of each favorable inference, and limit our review to a determination as to whether the facts they allege fall within a knowable legal theory," Justice Peters wrote. She continued, "Given the early prediscovery phase of this litigation, I agree with Supreme Court that petitioners sufficiently pleaded a viable separation of powers claim." Justice Peters seemed the most skeptical judge about the state's case when the panel heard oral arguments in September (NYLJ, Sept. 4). At one point, she asked state attorney Richard H. Dolan whether judges could not be held "hostage for decades" by Legislatures and governors unwilling to grant them increases.
Mr. Dolan replied that judges on some state courts, especially the Court of Appeals, have gone decades in the past without pay raises. The suit before the Third Department yesterday was brought by Nassau County Court Judge Edward A. Maron (See Profile), Supreme Court Justice Arthur Schack of Brooklyn (See Profile) and former Supreme Court Justice Joseph A. DeMaro of Brooklyn. It is one of three suits brought on behalf of the judiciary seeking higher pay and the first to reach the Appellate Division. A second suit, Larabee v. Governor, 112301/07, is scheduled to be heard by a First Department panel on Tuesday. In that case, Supreme Court Justice Edward H. Lehner (See Profile) ruled that lawmakers and the governor had unconstitutionally linked passage of a judicial pay raise to unrelated public policy issues, such as campaign finance reform or a pay raise for lawmakers themselves (NYLJ, June 11). A third suit, Kaye v. Silver, 400763/08, is also before Justice Lehner in Manhattan. He is considering a motion for summary judgment filed by Chief Judge Judith S. Kaye and motions to dismiss the action from the governor and legislative leaders. Steven Cohn of Carle Place represented the plaintiffs in Maron v. Silver, the Third Department case. "I am very disappointed with the ruling," Mr. Cohn said last night in an interview. "We are definitely going to appeal." He added, "We hope the First Department takes a different view [in Larabee]." Assistant Solicitor General Julie M. Sheridan and Mr. Dolan, of Schlam, Stone & Dolan, argued for the governor and legislative leaders. Joel.Stashenko@incisivemedia.com
See related story: "Governor's Future Hinges on Chief Judge Pick"
Thursday, November 13, 2008
Unhappy Judge Sentences Corrupt Ex-Lawyer
Judge Sentences Ex-Lawyer to 16-Month Maximum
The New York Law Journal by Mark Fass - November 13, 2008
Larry Bronson, the former criminal defense attorney who pleaded guilty in January to helping a client illegally structure money transactions to avoid reporting requirements, was sentenced yesterday to 16 months in prison, the maximum recommended under federal guidelines. Mr. Bronson, originally charged with assisting "La Cosa Nostra in its criminal activities" and obstructing justice on its behalf, appeared in the courtroom of Eastern District Judge Nicholas G. Garaufis with an unlikely advocate, former Eastern District U.S. Attorney Alan Vinegrad. Now a partner at Covington & Burling, Mr. Vinegrad argued for a downward departure. One factor suggested by Mr. Vinegrad - Mr. Bronson's propensity for "financial generosity" - not only failed to sway the judge, but instead provoked his ire. "How can you stand in front of me, counselor, and tell me about all the good things he's done when he hasn't met the most fundamental obligation of this country?" Judge Garaufis said, referring to Mr. Bronson's unpaid tax debt of over $200,000. "I really take issue that you can be Robin Hood with someone else's money."
The New York Law Journal by Mark Fass - November 13, 2008
Larry Bronson, the former criminal defense attorney who pleaded guilty in January to helping a client illegally structure money transactions to avoid reporting requirements, was sentenced yesterday to 16 months in prison, the maximum recommended under federal guidelines. Mr. Bronson, originally charged with assisting "La Cosa Nostra in its criminal activities" and obstructing justice on its behalf, appeared in the courtroom of Eastern District Judge Nicholas G. Garaufis with an unlikely advocate, former Eastern District U.S. Attorney Alan Vinegrad. Now a partner at Covington & Burling, Mr. Vinegrad argued for a downward departure. One factor suggested by Mr. Vinegrad - Mr. Bronson's propensity for "financial generosity" - not only failed to sway the judge, but instead provoked his ire. "How can you stand in front of me, counselor, and tell me about all the good things he's done when he hasn't met the most fundamental obligation of this country?" Judge Garaufis said, referring to Mr. Bronson's unpaid tax debt of over $200,000. "I really take issue that you can be Robin Hood with someone else's money."
Governor's Future Hinges on Chief Judge Pick
•Chief Judge Kaye, 70, will depart the bench on Dec. 31 due to the court's mandatory retirement rule.
•The Commission on Judicial Nomination must give Governor David A. Paterson a list of seven names on Dec. 1 from which he must nominate the next chief judge, subject to confirmation by the New York State Senate.
Kaye Looks Forward in Final Address
The New York Law Journal by Joel Stashenko - November 13, 2008
Judith S. Kaye acknowledged yesterday in her final State of the Judiciary address as chief judge that her successor will inherit serious challenges for the judiciary, many of them related to the legal fallout from the "flailing" economy. One problem the court system is beginning to identify is a serious shortage of available legal services and credit counseling that homeowners with subprime mortgages need in order to make meaningful state-mandated conferences with lenders to avoid foreclosure, the chief judge said. "The insight that we've come to realize is that we've got to get help for these people," she said. "Just mandating a conference doesn't do it." Chief Judge Kaye delivered her last State of the Judiciary nine months later than has been her custom. She said she put off her remarks in February to demonstrate the frustration within the judiciary over the failure of lawmakers and governor to grant state judges their first pay raise since 1999. And the chief judge also broke with tradition by speaking to a near-capacity crowd at a performing arts center at New York University instead of Court of Appeals Hall in Albany.
Chief Judge Kaye, 70, will depart the bench on Dec. 31 due to the court's mandatory retirement rule. She has been on the Court for 25 years, 15 in its center seat. "There can be no doubt that I have had the role of a lifetime, a privilege beyond description to labor in the cause of justice alongside the greatest people on Earth," she told a crowd of judges, attorneys, academics and students. The chief judge said she would not dwell on the pay raise situation, over which she has sued the Legislature and governor. But she said it is "heartbreaking, frustrating and demoralizing beyond description" that judges have gone nearly a decade without a raise. She praised the judiciary for continuing to do its job in the face of rising dockets and despite being "deeply pained personally and individually" by the pay situation.
Chief Judge Kaye said it is becoming apparent that a new state law mandating pre-foreclosure conferences for those facing the loss of their homes will not provide the desired relief from foreclosure unless borrowers get informed credit counseling and legal help beforehand. The holders of high-cost, subprime mortgages on one- to four-family dwellings can request a pre-foreclosure conference with lenders under a new state law that went into effect Sept. 1. Also under that statute, no foreclosures can be filed for 90 days starting Sept. 1. The most likely source of the legal help for homeowners facing foreclosure, given the poor economy and the state's difficult finances, will have to come pro bono, Chief Judge Kaye told reporters after her speech. "So we're at that next juncture where we've been meeting with the bar and just exploring ways to get the kind of help that these people need," she said. "The conference is great . . . but they should be meaningful court conferences." The last time the bar was asked to respond pro bono to a major legal crisis was after the terrorist attacks of Sept. 11, 2001, when the chief judge said big law firms "opened their doors and there was an outpouring of free legal services for people in need." "Probably the same thing is going to happen, but it has not yet happened," Chief Judge Kaye said after her speech.
She said one problem court administrators are finding is that firms that might be expected to provide pro bono help to homeowners find themselves conflicted in some cases because many also represent banks writing the mortgages. A call for comment to Bernice Leber, president of the New York State Bar Association, was not immediately returned yesterday. So far, the court system has sent out notices to 25,000 homeowners facing possible foreclosure informing them they are eligible for a pre-foreclosure conference. Chief Administrative Judge Ann Pfau said yesterday that about 100 requests have come back for conferences, with many more expected. Earlier this year, the Court system instituted a pre-foreclosure conference system in Queens for owners of one- to four-family homes regardless of whether their mortgages were subprime or carried more traditional rates. Judge Pfau said about 90 percent of the homeowners in Queens facing foreclosure have defaulted on their mortgages, indicating that more in terms of legal representation and counseling for homeowners is needed to help them avoid losing their homes. Chief Judge Kaye also warned yesterday that the 1.8 million filings in civil courts are sure to soar due to the sour economy. "All caseloads, I just know, are going to mushroom given the state of our economy," she said.
Family Court, Green Courts - Also in yesterday's speech, Chief Judge Kaye:
• Thanked the three administrative judges that served under her during her record-long tenure as chief judge, E. Leo Milonas, Justice Jonathan Lippman and Judge Pfau. She said after the address she considered not naming Judge Lippman for fear she would be seen as endorsing his candidacy to replace her. "You know, I did think about not mentioning him at all because of the situation, but wouldn't that have been absurd after more than 12 years as the chief administrative judge, part of every single one of the initiatives, not to say a special thank you?" she said. "I thought that was human decency." Justice Lippman has applied to the Commission on Judicial Nomination to be the next chief judge, as have three current associate judges on the Court of Appeals: Judges Carmen Beauchamp Ciparick, Eugene F. Pigott Jr. and Theodore T. Jones Jr. The commission must give Governor David A. Paterson a list of seven names on Dec. 1 from which he must nominate the next chief judge, subject to confirmation by the state Senate. Chief Judge Kaye also lauded Fern Fisher, administrative judge for the Civil Court of New York City, for Housing Court improvements. Judge Fisher also has acknowledged applying to the commission to become the next chief judge.
• Said the judiciary should renew efforts to expand the number of Family Court judges due to continuing high caseloads. New case filings exceeded 700,000 in 2007 and are on track to number about 728,000 in 2008, according to the chief judge. "I personally have never before seen such burdens placed on Family Court, emotional burdens and calendar burdens, typically necessitating long court days and long court delays - delays that in child time are an eternity," the chief judge said. "No fair to the litigants, no fair to the courts." There are 149 full-time Family Court judges, 47 in New York City. The chief judge said the need for more judges in the city is particularly dire. A deal appeared to be close in the Legislature to create 39 new Family Court judgeships this spring, 14 in New York City, but momentum disappeared when Mr. Paterson began to warn of the looming economic storm (NYLJ, July 11). The Office of Court Administration generally estimates that it costs $1 million to create a new state court judgeship, with the cost tending to come down after new judges have established their chambers and their staffs. Separately from advocating for more Family Court judges, Chief Judge Kaye announced yesterday that the judiciary is working with New York City agencies and providers of counsel to parents and children in a new initiative to fast-track the handling of child welfare proceedings in the city. "Our joint objective, our fervent hope and belief, is that these measures will accelerate the time to disposition and early permanency for children," the chief judge said.
•Announced the release of what she called the first environmental plan for a judicial system "in the nation, the world, the universe." It contains initiatives such as expanding electronic filing of documents to reduce the use of paper, expanding video conferencing for routine court matters and retrofitting court facilities to save energy and water. Joel.Stashenko@incisivemedia.com
•The Commission on Judicial Nomination must give Governor David A. Paterson a list of seven names on Dec. 1 from which he must nominate the next chief judge, subject to confirmation by the New York State Senate.
Kaye Looks Forward in Final Address
The New York Law Journal by Joel Stashenko - November 13, 2008
Judith S. Kaye acknowledged yesterday in her final State of the Judiciary address as chief judge that her successor will inherit serious challenges for the judiciary, many of them related to the legal fallout from the "flailing" economy. One problem the court system is beginning to identify is a serious shortage of available legal services and credit counseling that homeowners with subprime mortgages need in order to make meaningful state-mandated conferences with lenders to avoid foreclosure, the chief judge said. "The insight that we've come to realize is that we've got to get help for these people," she said. "Just mandating a conference doesn't do it." Chief Judge Kaye delivered her last State of the Judiciary nine months later than has been her custom. She said she put off her remarks in February to demonstrate the frustration within the judiciary over the failure of lawmakers and governor to grant state judges their first pay raise since 1999. And the chief judge also broke with tradition by speaking to a near-capacity crowd at a performing arts center at New York University instead of Court of Appeals Hall in Albany.
Chief Judge Kaye, 70, will depart the bench on Dec. 31 due to the court's mandatory retirement rule. She has been on the Court for 25 years, 15 in its center seat. "There can be no doubt that I have had the role of a lifetime, a privilege beyond description to labor in the cause of justice alongside the greatest people on Earth," she told a crowd of judges, attorneys, academics and students. The chief judge said she would not dwell on the pay raise situation, over which she has sued the Legislature and governor. But she said it is "heartbreaking, frustrating and demoralizing beyond description" that judges have gone nearly a decade without a raise. She praised the judiciary for continuing to do its job in the face of rising dockets and despite being "deeply pained personally and individually" by the pay situation.
Chief Judge Kaye said it is becoming apparent that a new state law mandating pre-foreclosure conferences for those facing the loss of their homes will not provide the desired relief from foreclosure unless borrowers get informed credit counseling and legal help beforehand. The holders of high-cost, subprime mortgages on one- to four-family dwellings can request a pre-foreclosure conference with lenders under a new state law that went into effect Sept. 1. Also under that statute, no foreclosures can be filed for 90 days starting Sept. 1. The most likely source of the legal help for homeowners facing foreclosure, given the poor economy and the state's difficult finances, will have to come pro bono, Chief Judge Kaye told reporters after her speech. "So we're at that next juncture where we've been meeting with the bar and just exploring ways to get the kind of help that these people need," she said. "The conference is great . . . but they should be meaningful court conferences." The last time the bar was asked to respond pro bono to a major legal crisis was after the terrorist attacks of Sept. 11, 2001, when the chief judge said big law firms "opened their doors and there was an outpouring of free legal services for people in need." "Probably the same thing is going to happen, but it has not yet happened," Chief Judge Kaye said after her speech.
She said one problem court administrators are finding is that firms that might be expected to provide pro bono help to homeowners find themselves conflicted in some cases because many also represent banks writing the mortgages. A call for comment to Bernice Leber, president of the New York State Bar Association, was not immediately returned yesterday. So far, the court system has sent out notices to 25,000 homeowners facing possible foreclosure informing them they are eligible for a pre-foreclosure conference. Chief Administrative Judge Ann Pfau said yesterday that about 100 requests have come back for conferences, with many more expected. Earlier this year, the Court system instituted a pre-foreclosure conference system in Queens for owners of one- to four-family homes regardless of whether their mortgages were subprime or carried more traditional rates. Judge Pfau said about 90 percent of the homeowners in Queens facing foreclosure have defaulted on their mortgages, indicating that more in terms of legal representation and counseling for homeowners is needed to help them avoid losing their homes. Chief Judge Kaye also warned yesterday that the 1.8 million filings in civil courts are sure to soar due to the sour economy. "All caseloads, I just know, are going to mushroom given the state of our economy," she said.
Family Court, Green Courts - Also in yesterday's speech, Chief Judge Kaye:
• Thanked the three administrative judges that served under her during her record-long tenure as chief judge, E. Leo Milonas, Justice Jonathan Lippman and Judge Pfau. She said after the address she considered not naming Judge Lippman for fear she would be seen as endorsing his candidacy to replace her. "You know, I did think about not mentioning him at all because of the situation, but wouldn't that have been absurd after more than 12 years as the chief administrative judge, part of every single one of the initiatives, not to say a special thank you?" she said. "I thought that was human decency." Justice Lippman has applied to the Commission on Judicial Nomination to be the next chief judge, as have three current associate judges on the Court of Appeals: Judges Carmen Beauchamp Ciparick, Eugene F. Pigott Jr. and Theodore T. Jones Jr. The commission must give Governor David A. Paterson a list of seven names on Dec. 1 from which he must nominate the next chief judge, subject to confirmation by the state Senate. Chief Judge Kaye also lauded Fern Fisher, administrative judge for the Civil Court of New York City, for Housing Court improvements. Judge Fisher also has acknowledged applying to the commission to become the next chief judge.
• Said the judiciary should renew efforts to expand the number of Family Court judges due to continuing high caseloads. New case filings exceeded 700,000 in 2007 and are on track to number about 728,000 in 2008, according to the chief judge. "I personally have never before seen such burdens placed on Family Court, emotional burdens and calendar burdens, typically necessitating long court days and long court delays - delays that in child time are an eternity," the chief judge said. "No fair to the litigants, no fair to the courts." There are 149 full-time Family Court judges, 47 in New York City. The chief judge said the need for more judges in the city is particularly dire. A deal appeared to be close in the Legislature to create 39 new Family Court judgeships this spring, 14 in New York City, but momentum disappeared when Mr. Paterson began to warn of the looming economic storm (NYLJ, July 11). The Office of Court Administration generally estimates that it costs $1 million to create a new state court judgeship, with the cost tending to come down after new judges have established their chambers and their staffs. Separately from advocating for more Family Court judges, Chief Judge Kaye announced yesterday that the judiciary is working with New York City agencies and providers of counsel to parents and children in a new initiative to fast-track the handling of child welfare proceedings in the city. "Our joint objective, our fervent hope and belief, is that these measures will accelerate the time to disposition and early permanency for children," the chief judge said.
•Announced the release of what she called the first environmental plan for a judicial system "in the nation, the world, the universe." It contains initiatives such as expanding electronic filing of documents to reduce the use of paper, expanding video conferencing for routine court matters and retrofitting court facilities to save energy and water. Joel.Stashenko@incisivemedia.com
Wednesday, November 12, 2008
When in Doubt, Try to 'Hire' the Judge
Lawyers Who Made Job Offer to the Judge on Their Case Sued by Opposing Party
New Jersey Law Journal by Charles Toutant - November 12, 2008
Lawyers who engaged a retiring judge in discussions about a future business relationship while he was ruling in one of their cases have been sued for damages -- specifically, the other party's attorney fees. The suit, just filed in Morris County, N.J., is the aftermath of the New Jersey Supreme Court's September ruling in Denike v. Cupo, A-61-07, which upended a commercial suit judgment based on a perceived appearance of impropriety. The justices found Gerald Escala, a Bergen County Superior Court judge nearing retirement, created an appearance of impropriety by talking about a job offer with a Hackensack, N.J., law firm while winding up the dispute, in which the firm represented one of the parties.
Now the other party, Michael Cupo, is suing Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz and partner Thomas Herten, claiming the firm's actions amounted to professional negligence and have injured him in the pocketbook. "Cupo spent over $250,000 to have his case against Lawrence Denike tried to conclusion and now as a direct result of the actions of Thomas J. Herten, Esq., and the Defendant law firm of Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, LLC, he must spend additional funds for the retrial," reads the complaint in Cupo v. Herten. The suit advances a third-party legal malpractice cause of action, for which Cupo's lawyer says there is ample precedent. "Cupo is a third-party beneficiary to the contract between Denike and Herten," says his attorney, Jeffrey Pocaro, a Fanwood, N.J., solo. "Herten's got an obligation not to injure my client." Herten's job offer came in the final chapter of a contentious, three-year dispute between Cupo and Denike, founders of a mortgage company who decided to go their separate ways. According to court papers, Escala issued a final decision in the underlying case on Jan. 23, 2006, ordering Denike to pay Cupo the $731,682. The next day, Herten visited the judge's chambers, inquired about his retirement plans and asked whether he would consider joining Herten Berstein in some capacity. Escala outlined the type of firm relationship he was contemplating. Herten discussed the proposed relationship with his partners on Jan. 25 and told Escala they would need a few days to analyze it.
On Jan. 30, Herten received from Escala by mail an order with terms that seemed inconsistent with the judge's prior decision. Herten submitted an alternate form of order, which the judge signed on Feb. 1. The same day, Herten told Escala the firm's analysis of the proposed relationship was not yet completed. On Feb. 3, Herten visited Escala in chambers and the two agreed to a relationship in principle, with the financial terms to be worked out later. That night, Escala announced at a retirement dinner, attended by his former law clerks and staff, that he was joining the firm. He came aboard Feb. 27. The Appellate Division said the episode did not amount to reversible error. But the Supreme Court ordered a new trial, finding that the job negotiations between a judge and an attorney appearing before that judge cast doubt on the integrity of the judicial process. Judges may not talk about jobs with parties or attorneys in a matter in which they are participating, and, if offered a job by parties in a matter before them, should halt the conversation immediately and disclose on the record what happened, the court said. The new suit is seeking compensatory and punitive damages, including reimbursement for legal bills from the original trial. "It's wasted money now," says Pocaro. The suit also seeks legal fees for the appeals process just completed and for the prospective retrial. What's more, if Cupo's recovery at retrial for his share of the business is less than the $731,682 he was awarded in the first trial, he will seek compensation from Herten's firm for the difference.
Cupo's suit includes counts of malpractice, deprivation of right to fair trial and tortious interference with business advantage. Pocaro says there is a common law right to bring a malpractice claim against an adversary's lawyer based on the Supreme Court's holding in Petrillo v. Bachenburg, 139 N.J. 472 (1995). There, the buyer in a real estate transaction sought damages from the seller's attorney for providing incomplete information about percolation tests on the property. The Petrillo court held that the seller's attorney had a fiduciary duty of care to the buyer and that such duty may exist "when the attorney knew, or should know, that nonclients will rely on the attorney's representations." Pocaro says, "It's a question of foreseeability. Could Herten foresee his offering the judge a job before the judge signed the final orders would result in a retrial? The answer is yes." Pocaro also intends to rely on the Appellate Division holding in Finderne Management Co. v. Barrett, 355 N.J. Super. 197 (2002), that "generally, to recover for an economic loss resulting from negligence by one furnishing a service, a "direct contractual relationship between the parties" must exist or the injured party must be a known "beneficiary of the defendant's undertaking."
New Jersey Law Journal by Charles Toutant - November 12, 2008
Lawyers who engaged a retiring judge in discussions about a future business relationship while he was ruling in one of their cases have been sued for damages -- specifically, the other party's attorney fees. The suit, just filed in Morris County, N.J., is the aftermath of the New Jersey Supreme Court's September ruling in Denike v. Cupo, A-61-07, which upended a commercial suit judgment based on a perceived appearance of impropriety. The justices found Gerald Escala, a Bergen County Superior Court judge nearing retirement, created an appearance of impropriety by talking about a job offer with a Hackensack, N.J., law firm while winding up the dispute, in which the firm represented one of the parties.
Now the other party, Michael Cupo, is suing Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz and partner Thomas Herten, claiming the firm's actions amounted to professional negligence and have injured him in the pocketbook. "Cupo spent over $250,000 to have his case against Lawrence Denike tried to conclusion and now as a direct result of the actions of Thomas J. Herten, Esq., and the Defendant law firm of Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, LLC, he must spend additional funds for the retrial," reads the complaint in Cupo v. Herten. The suit advances a third-party legal malpractice cause of action, for which Cupo's lawyer says there is ample precedent. "Cupo is a third-party beneficiary to the contract between Denike and Herten," says his attorney, Jeffrey Pocaro, a Fanwood, N.J., solo. "Herten's got an obligation not to injure my client." Herten's job offer came in the final chapter of a contentious, three-year dispute between Cupo and Denike, founders of a mortgage company who decided to go their separate ways. According to court papers, Escala issued a final decision in the underlying case on Jan. 23, 2006, ordering Denike to pay Cupo the $731,682. The next day, Herten visited the judge's chambers, inquired about his retirement plans and asked whether he would consider joining Herten Berstein in some capacity. Escala outlined the type of firm relationship he was contemplating. Herten discussed the proposed relationship with his partners on Jan. 25 and told Escala they would need a few days to analyze it.
On Jan. 30, Herten received from Escala by mail an order with terms that seemed inconsistent with the judge's prior decision. Herten submitted an alternate form of order, which the judge signed on Feb. 1. The same day, Herten told Escala the firm's analysis of the proposed relationship was not yet completed. On Feb. 3, Herten visited Escala in chambers and the two agreed to a relationship in principle, with the financial terms to be worked out later. That night, Escala announced at a retirement dinner, attended by his former law clerks and staff, that he was joining the firm. He came aboard Feb. 27. The Appellate Division said the episode did not amount to reversible error. But the Supreme Court ordered a new trial, finding that the job negotiations between a judge and an attorney appearing before that judge cast doubt on the integrity of the judicial process. Judges may not talk about jobs with parties or attorneys in a matter in which they are participating, and, if offered a job by parties in a matter before them, should halt the conversation immediately and disclose on the record what happened, the court said. The new suit is seeking compensatory and punitive damages, including reimbursement for legal bills from the original trial. "It's wasted money now," says Pocaro. The suit also seeks legal fees for the appeals process just completed and for the prospective retrial. What's more, if Cupo's recovery at retrial for his share of the business is less than the $731,682 he was awarded in the first trial, he will seek compensation from Herten's firm for the difference.
Cupo's suit includes counts of malpractice, deprivation of right to fair trial and tortious interference with business advantage. Pocaro says there is a common law right to bring a malpractice claim against an adversary's lawyer based on the Supreme Court's holding in Petrillo v. Bachenburg, 139 N.J. 472 (1995). There, the buyer in a real estate transaction sought damages from the seller's attorney for providing incomplete information about percolation tests on the property. The Petrillo court held that the seller's attorney had a fiduciary duty of care to the buyer and that such duty may exist "when the attorney knew, or should know, that nonclients will rely on the attorney's representations." Pocaro says, "It's a question of foreseeability. Could Herten foresee his offering the judge a job before the judge signed the final orders would result in a retrial? The answer is yes." Pocaro also intends to rely on the Appellate Division holding in Finderne Management Co. v. Barrett, 355 N.J. Super. 197 (2002), that "generally, to recover for an economic loss resulting from negligence by one furnishing a service, a "direct contractual relationship between the parties" must exist or the injured party must be a known "beneficiary of the defendant's undertaking."
Tuesday, November 11, 2008
Wall Street Journal on Top Prosecutor for Tammany Hall II Corruption Probe
Garcia Considers Law-Firm Post
The Wall Street Journal by Amir Efrati - November 10, 2008
Michael Garcia, the U.S. attorney for the Southern District of New York, in Manhattan, could resign his position as early as this week and is likely to join a private law firm in New York, say people close to his office. Under his three-year leadership, Mr. Garcia's office became well known for the successful prosecution of public-corruption and terrorism-related cases. At the same time, the office also lost some of the luster it once had as the top Wall Street cop, stumbling in some high-profile cases and losing turf battles with other prosecutors' offices. The next U.S. attorney may be expected to step up the office's pursuit of corporate wrongdoing. Public pressure is growing to increase regulation of financial institutions and find people who may have contributed to the financial crisis. Names that have surfaced so far as possible candidates for the job include Lev Dassin, the current No. 2 prosecutor at the Southern District, who would take over for Mr. Garcia until the Obama administration makes an appointment next year; Mark Pomerantz, a prominent white-collar defense lawyer in New York and a former Southern District prosecutor; and Preet Bharara, a former Southern District prosecutor currently serving as Sen. Chuck Schumer's chief counsel on the U.S. Senate Judiciary Committee. Messrs. Garcia, Dassin, Pomerantz and Bharara declined to comment.
The Southern District has suffered some setbacks of late. Mr. Garcia's securities-fraud unit recently lost the chance to investigate mortgage investors Fannie Mae and Freddie Mac after the Justice Department gave the cases to federal prosecutors in Washington and Virginia, according to a person familiar with the matter. (Spokeswomen for the Southern District and for the Justice Department in Washington declined to comment.) In recent years, the office bungled two high-profile tax- and securities-fraud prosecutions, though both were initiated before Mr. Garcia arrived. And federal prosecutors in Brooklyn, rather than Manhattan, recently brought the first two securities-fraud prosecutions stemming from the credit crisis, a development viewed by some as a blow to Mr. Garcia's office. However, the Southern District still consistently brings big white-collar cases. Under Mr. Garcia, Manhattan prosecutors obtained guilty pleas in a fraud case against former executives of collapsed financial firm Refco Inc., and successfully prosecuted both large-scale insider trading at Wall Street firms and cases of stock-option backdating. The office also successfully prosecuted corruption cases stemming from the United Nations oil-for-food scandal. Last week, the office decided not to bring charges against former New York Gov. Eliot Spitzer, though its prosecution of organizers of a prostitution ring that counted Mr. Spitzer as a client helped prompt Mr. Spitzer to resign earlier this year. Since the credit crisis worsened, the Southern District has been active. It is investigating possible wrongdoing by executives at Countrywide Financial Corp. and at Lehman Brothers Holdings Inc. And last month, Mr. Garcia took the unusual step of confirming a report about his office's joint investigation -- with the New York attorney general's office -- of potentially improper trading in the credit-default swap market. Mr. Garcia has been in advanced talks to join the New York office of law firm Kirkland & Ellis. A spokesman for the firm declined to comment. Write to Amir Efrati at amir.efrati@wsj.com
The Wall Street Journal by Amir Efrati - November 10, 2008
Michael Garcia, the U.S. attorney for the Southern District of New York, in Manhattan, could resign his position as early as this week and is likely to join a private law firm in New York, say people close to his office. Under his three-year leadership, Mr. Garcia's office became well known for the successful prosecution of public-corruption and terrorism-related cases. At the same time, the office also lost some of the luster it once had as the top Wall Street cop, stumbling in some high-profile cases and losing turf battles with other prosecutors' offices. The next U.S. attorney may be expected to step up the office's pursuit of corporate wrongdoing. Public pressure is growing to increase regulation of financial institutions and find people who may have contributed to the financial crisis. Names that have surfaced so far as possible candidates for the job include Lev Dassin, the current No. 2 prosecutor at the Southern District, who would take over for Mr. Garcia until the Obama administration makes an appointment next year; Mark Pomerantz, a prominent white-collar defense lawyer in New York and a former Southern District prosecutor; and Preet Bharara, a former Southern District prosecutor currently serving as Sen. Chuck Schumer's chief counsel on the U.S. Senate Judiciary Committee. Messrs. Garcia, Dassin, Pomerantz and Bharara declined to comment.
The Southern District has suffered some setbacks of late. Mr. Garcia's securities-fraud unit recently lost the chance to investigate mortgage investors Fannie Mae and Freddie Mac after the Justice Department gave the cases to federal prosecutors in Washington and Virginia, according to a person familiar with the matter. (Spokeswomen for the Southern District and for the Justice Department in Washington declined to comment.) In recent years, the office bungled two high-profile tax- and securities-fraud prosecutions, though both were initiated before Mr. Garcia arrived. And federal prosecutors in Brooklyn, rather than Manhattan, recently brought the first two securities-fraud prosecutions stemming from the credit crisis, a development viewed by some as a blow to Mr. Garcia's office. However, the Southern District still consistently brings big white-collar cases. Under Mr. Garcia, Manhattan prosecutors obtained guilty pleas in a fraud case against former executives of collapsed financial firm Refco Inc., and successfully prosecuted both large-scale insider trading at Wall Street firms and cases of stock-option backdating. The office also successfully prosecuted corruption cases stemming from the United Nations oil-for-food scandal. Last week, the office decided not to bring charges against former New York Gov. Eliot Spitzer, though its prosecution of organizers of a prostitution ring that counted Mr. Spitzer as a client helped prompt Mr. Spitzer to resign earlier this year. Since the credit crisis worsened, the Southern District has been active. It is investigating possible wrongdoing by executives at Countrywide Financial Corp. and at Lehman Brothers Holdings Inc. And last month, Mr. Garcia took the unusual step of confirming a report about his office's joint investigation -- with the New York attorney general's office -- of potentially improper trading in the credit-default swap market. Mr. Garcia has been in advanced talks to join the New York office of law firm Kirkland & Ellis. A spokesman for the firm declined to comment. Write to Amir Efrati at amir.efrati@wsj.com
New Boss Coming to Head NY's Tammany Hall II Corruption
U.S. Attorney in Manhattan May Leave for Private Sector
The New York Times By BENJAMIN WEISER - November 8, 2008
Michael J. Garcia, the United States attorney in Manhattan who oversaw a series of high-profile corruption cases, including one that led to the resignation of Gov. Eliot Spitzer, has decided to leave his post early and will join a private law firm, lawyers familiar with his plans say.His departure could be announced as early as next week.
Mr. Garcia, 47, who has been in his post for three years, is expected to be succeeded, at least temporarily, by his deputy, Lev L. Dassin, a veteran prosecutor. Mr. Garcia said this week that he would not seek charges against Mr. Spitzer for patronizing a prostitution ring. Beyond that case, he prosecuted several state politicians and city officials; former Police Commissioner Bernard B. Kerik; and the Democratic political fund-raiser Norman Hsu. Most of those cases are still pending, with the defendants pleading not guilty. The Manhattan office, one of the largest federal attorney’s offices, has handled some of the most important terrorism and securities fraud prosecutions. Just last month, Mr. Garcia joined with the New York State attorney general, Andrew M. Cuomo, in an inquiry into credit-default swaps, the unregulated financial instruments at the center of the current meltdown.
Mr. Garcia will become a partner with Kirkland & Ellis, an international law firm. Before becoming United States attorney in 2005, he served as assistant secretary for immigration and customs enforcement in the Department of Homeland Security. He had worked earlier as a federal prosecutor in Manhattan, on such cases as the 1993 World Trade Center bombing; a foiled plot to blow up jets over the Pacific Ocean; and the 1998 American Embassy bombings in East Africa. Mr. Dassin, 43, ran the office’s criminal division under Mr. Garcia, and later became his deputy. He previously worked at the law firm Kaye Scholer. As an assistant United States attorney in the 1990s, he also prosecuted major terrorism and white-collar cases. President-elect Barack Obama has not yet signaled whom he might choose as United States attorney, but among early names being heard among lawyers and others are Mr. Dassin and two other alumni of the office: Preet Bharara, chief counsel to Senator Charles E. Schumer; and Mark F. Pomerantz, a partner at the Manhattan law firm Paul, Weiss, Rifkind, Wharton & Garrison.
The New York Times By BENJAMIN WEISER - November 8, 2008
Michael J. Garcia, the United States attorney in Manhattan who oversaw a series of high-profile corruption cases, including one that led to the resignation of Gov. Eliot Spitzer, has decided to leave his post early and will join a private law firm, lawyers familiar with his plans say.His departure could be announced as early as next week.
Mr. Garcia, 47, who has been in his post for three years, is expected to be succeeded, at least temporarily, by his deputy, Lev L. Dassin, a veteran prosecutor. Mr. Garcia said this week that he would not seek charges against Mr. Spitzer for patronizing a prostitution ring. Beyond that case, he prosecuted several state politicians and city officials; former Police Commissioner Bernard B. Kerik; and the Democratic political fund-raiser Norman Hsu. Most of those cases are still pending, with the defendants pleading not guilty. The Manhattan office, one of the largest federal attorney’s offices, has handled some of the most important terrorism and securities fraud prosecutions. Just last month, Mr. Garcia joined with the New York State attorney general, Andrew M. Cuomo, in an inquiry into credit-default swaps, the unregulated financial instruments at the center of the current meltdown.
Mr. Garcia will become a partner with Kirkland & Ellis, an international law firm. Before becoming United States attorney in 2005, he served as assistant secretary for immigration and customs enforcement in the Department of Homeland Security. He had worked earlier as a federal prosecutor in Manhattan, on such cases as the 1993 World Trade Center bombing; a foiled plot to blow up jets over the Pacific Ocean; and the 1998 American Embassy bombings in East Africa. Mr. Dassin, 43, ran the office’s criminal division under Mr. Garcia, and later became his deputy. He previously worked at the law firm Kaye Scholer. As an assistant United States attorney in the 1990s, he also prosecuted major terrorism and white-collar cases. President-elect Barack Obama has not yet signaled whom he might choose as United States attorney, but among early names being heard among lawyers and others are Mr. Dassin and two other alumni of the office: Preet Bharara, chief counsel to Senator Charles E. Schumer; and Mark F. Pomerantz, a partner at the Manhattan law firm Paul, Weiss, Rifkind, Wharton & Garrison.
Six Court Officers Suspended for Drinking
Six Court Officers Suspended for Drinking
By THE ASSOCIATED PRESS - November 11, 2008
Six New York City court officers who were seen drinking during work hours have been suspended without pay for 30 days. Court officers are the uniformed, armed personnel who work in the state’s courthouses. A spokesman for the State Office of Court Administration, David Bookstaver, said that the television program “Inside Edition” had used hidden cameras that caught the officers drinking in a bar on their lunch break, in “clear violation” of court policy. Mr. Bookstaver said that court officials saw the videotape and identified the six, who work in the Criminal Court building in Manhattan. He said the officers were suspended on Friday and could face further disciplinary measures.
By THE ASSOCIATED PRESS - November 11, 2008
Six New York City court officers who were seen drinking during work hours have been suspended without pay for 30 days. Court officers are the uniformed, armed personnel who work in the state’s courthouses. A spokesman for the State Office of Court Administration, David Bookstaver, said that the television program “Inside Edition” had used hidden cameras that caught the officers drinking in a bar on their lunch break, in “clear violation” of court policy. Mr. Bookstaver said that court officials saw the videotape and identified the six, who work in the Criminal Court building in Manhattan. He said the officers were suspended on Friday and could face further disciplinary measures.
And from November 10, 2008 MyFoxNY:
6 NY Court Officers Accused Of Drinking On The Job Suspended
NEW YORK -- Six New York City court officers accused of drinking during work hours have been suspended for 30 days without pay. Court officers are the uniformed, armed personnel who work in the state's courthouses. Courts spokesman David Bookstaver says the television show "Inside Edition" used hidden cameras to catch the officers drinking in a bar on their lunch break in "clear violation" of court policy. Bookstaver says court officials saw the videotape and identified the six, who work in Manhattan's Criminal Courts Building. He says they were suspended Friday and could face further disciplinary measures. Bookstaver says the state's other 4,000 court officers are professionals and take their jobs very seriously.
6 NY Court Officers Accused Of Drinking On The Job Suspended
NEW YORK -- Six New York City court officers accused of drinking during work hours have been suspended for 30 days without pay. Court officers are the uniformed, armed personnel who work in the state's courthouses. Courts spokesman David Bookstaver says the television show "Inside Edition" used hidden cameras to catch the officers drinking in a bar on their lunch break in "clear violation" of court policy. Bookstaver says court officials saw the videotape and identified the six, who work in Manhattan's Criminal Courts Building. He says they were suspended Friday and could face further disciplinary measures. Bookstaver says the state's other 4,000 court officers are professionals and take their jobs very seriously.
Monday, November 10, 2008
MSNBC: Federal Judge Resigns
Federal judge in Colo. resigns
MSNBC - October 21, 2008
Report: Former prostitute alleged he had asked her to lie
DENVER - The chief federal district judge in Colorado is resigning amid an investigation into allegations of misconduct. Details of the allegations against Judge Edward W. Nottingham weren’t released. The announcement comes days after a former prostitute told a Denver television station that Nottingham asked her to lie to federal investigators. Another person had filed a complaint earlier this year citing news reports that Nottingham allegedly viewed adult Web sites on his government computer in his chambers. A statement released by the 10th U.S. Circuit Court of Appeals said Nottingham has "ceased judicial duties" because of “multiple complaints of misconduct.” His resignation is effective Oct. 29, the court said. Judge Wiley Y. Daniel succeeds Nottingham as chief judge. The statement did not elaborate and the judicial council said it would not comment further until after the resignation takes effect. A message left with Nottingham's chambers wasn't immediately returned. A statement issued by his attorney's office said Nottingham "is deeply remorseful for his actions. He is also embarrassed and ashamed for any loss of confidence caused by those actions and attendant publicity, and sincerely apologizes to the public and judiciary. "Judge Nottingham also believes that the resignation is necessary for him to begin taking the necessary steps to put this matter behind him," the statement said.
Report: Involved with prostitute
A who identified herself as a former prostitute told KUSA-TV that she had sex with Nottingham for $250 to $300 an hour once a week from February 2003 through November 2004. She said he asked her to lie to investigators in March, helping her make up a story about how they knew each other so she would not tell investigators that he paid her for sex, the station reported. Sean Harrington, who heads a legal technology firm, had filed a complaint in January citing media reports that Nottingham allegedly viewed porn sites on his government computer in his chambers. Harrington also alleged that Nottingham had testified in his own divorce case that he spent $3,000 at a strip club. Sealed transcripts of the divorce case were obtained in 2007 by KUSA. At the time, Nottingham issued a statement saying that "private and personal matters involving human frailties and foibles" had became public because of bitter divorce proceedings. Court officials told Harrington in May his complaint had been submitted to a judicial council for review. Another complaint against Nottingham involved a dispute over a parking spot for the disabled. Nottingham had parked in the spot, and an attorney parked her wheelchair behind his vehicle. Police issued Nottingham a $100 ticket. He later said he regretted parking there.
Skillful jurist
Democratic U.S. Sen. Ken Salazar on Friday had called for Nottingham to step down. Salazar spokesman Michael Amodeo cited "a string allegations dating back to March concerning his conduct," but would not elaborate. "On the bench, Chief Judge Edward Nottingham was one of the most skillful lawyers and jurists I have known. I am saddened by the allegations and it is right that he resign," Salazar said in a statement. Nottingham presided over the high-profile insider-trading trial of the former CEO of Denver-based Qwest. Federal prosecutors argued Nacchio sold $52 million worth of stock at a time when he knew Qwest was at risk while other investors did not. He was convicted of 19 counts and acquitted of 23 others in April 2007. A three-judge panel of the 10th Circuit ordered a new trial in March, saying Nottingham improperly prevented a defense expert from testifying. The appeals court ordered the case go before a new judge, saying that "it would be unreasonably difficult to expect this judge (Nottingham) to retry the case with a fresh mind." The full 10th U.S. Circuit Court of Appeals is reviewing the panel's decision. Nottingham was a private attorney and assistant U.S. attorney in Denver before President George H.W. Bush appointed him to the federal bench in 1989. He became chief judge of the U.S. District Court for Colorado last year. The Associated Press contributed to this report. URL http://www.msnbc.msn.com/id/27311195/
MSNBC - October 21, 2008
Report: Former prostitute alleged he had asked her to lie
DENVER - The chief federal district judge in Colorado is resigning amid an investigation into allegations of misconduct. Details of the allegations against Judge Edward W. Nottingham weren’t released. The announcement comes days after a former prostitute told a Denver television station that Nottingham asked her to lie to federal investigators. Another person had filed a complaint earlier this year citing news reports that Nottingham allegedly viewed adult Web sites on his government computer in his chambers. A statement released by the 10th U.S. Circuit Court of Appeals said Nottingham has "ceased judicial duties" because of “multiple complaints of misconduct.” His resignation is effective Oct. 29, the court said. Judge Wiley Y. Daniel succeeds Nottingham as chief judge. The statement did not elaborate and the judicial council said it would not comment further until after the resignation takes effect. A message left with Nottingham's chambers wasn't immediately returned. A statement issued by his attorney's office said Nottingham "is deeply remorseful for his actions. He is also embarrassed and ashamed for any loss of confidence caused by those actions and attendant publicity, and sincerely apologizes to the public and judiciary. "Judge Nottingham also believes that the resignation is necessary for him to begin taking the necessary steps to put this matter behind him," the statement said.
Report: Involved with prostitute
A who identified herself as a former prostitute told KUSA-TV that she had sex with Nottingham for $250 to $300 an hour once a week from February 2003 through November 2004. She said he asked her to lie to investigators in March, helping her make up a story about how they knew each other so she would not tell investigators that he paid her for sex, the station reported. Sean Harrington, who heads a legal technology firm, had filed a complaint in January citing media reports that Nottingham allegedly viewed porn sites on his government computer in his chambers. Harrington also alleged that Nottingham had testified in his own divorce case that he spent $3,000 at a strip club. Sealed transcripts of the divorce case were obtained in 2007 by KUSA. At the time, Nottingham issued a statement saying that "private and personal matters involving human frailties and foibles" had became public because of bitter divorce proceedings. Court officials told Harrington in May his complaint had been submitted to a judicial council for review. Another complaint against Nottingham involved a dispute over a parking spot for the disabled. Nottingham had parked in the spot, and an attorney parked her wheelchair behind his vehicle. Police issued Nottingham a $100 ticket. He later said he regretted parking there.
Skillful jurist
Democratic U.S. Sen. Ken Salazar on Friday had called for Nottingham to step down. Salazar spokesman Michael Amodeo cited "a string allegations dating back to March concerning his conduct," but would not elaborate. "On the bench, Chief Judge Edward Nottingham was one of the most skillful lawyers and jurists I have known. I am saddened by the allegations and it is right that he resign," Salazar said in a statement. Nottingham presided over the high-profile insider-trading trial of the former CEO of Denver-based Qwest. Federal prosecutors argued Nacchio sold $52 million worth of stock at a time when he knew Qwest was at risk while other investors did not. He was convicted of 19 counts and acquitted of 23 others in April 2007. A three-judge panel of the 10th Circuit ordered a new trial in March, saying Nottingham improperly prevented a defense expert from testifying. The appeals court ordered the case go before a new judge, saying that "it would be unreasonably difficult to expect this judge (Nottingham) to retry the case with a fresh mind." The full 10th U.S. Circuit Court of Appeals is reviewing the panel's decision. Nottingham was a private attorney and assistant U.S. attorney in Denver before President George H.W. Bush appointed him to the federal bench in 1989. He became chief judge of the U.S. District Court for Colorado last year. The Associated Press contributed to this report. URL http://www.msnbc.msn.com/id/27311195/
Prosecutors' Selective Enforcement
SDNY Blows Eliot Spitzer a Kiss
Simple Justice by SHG - November 7, 2008
With a change in administration usually comes a change in the United States Attorney, and the Southern District of New York is no exception. Rather than leave loose threads, the current holder of the office, Michael Garcia, has chosen to close the door on a sordid chapter of New York history, the Eliot Spitzer scandal.
Don't, I repeat, Don't expect this to happen for you. The SDNY never announces that it will not be prosecuting someone. They did it for Spitzer.
Newsday and the New York Law Journal are reporting that Spitzer was not to be prosecuted. This comes from one of the most unique documents I've ever seen, a press release issued by Michael J. Garcia to announce a non-prosecution. Even the title of the release, which invariably names the target of government scrutiny, makes no mention of its subject. Instead, it demurely says, "Statement of United States Attorney Michael J. Garcia." Gee whiz, I wonder what that's about?
The release offers a few interesting insights about the government's decision not to pursue Spitzer:
ELIOT SPITZER has acknowledged to this Office that he was a client of, and made payments to, the Emperors Club VIP. Our investigation has shown that on multiple occasions, Mr. SPITZER arranged for women to travel from one state to another state to engage in prostitution. After a thorough investigation, this Office has uncovered no evidence of misuse of public or campaign funds. In addition, we have determined that there is insufficient evidence to bring charges against Mr. SPITZER for any offense relating to the withdrawal of funds for, and his payments to, the Emperors Club VIP.
First, that Spitzer admitted violating the Mann Act, and then the release says absolutely nothing further on the subject. Now some might argue that the Mann Act is old school, and nobody gets prosecuted for that anymore. Yeah? Tell that to ex-Judge/Jester Ronald Tills. Apparently, word of this benevolence never made it to the Western District of New York.
Next, Spitzer was cleared of using public or campaign funds. Huh? No one ever suggested that Spitzer, a multimillionaire by way of his father's real estate holdings, had his finger in the public till. This is a red herring.
And finally, that "there is insufficient evidence" as to "any offense relating to the withdrawal of funds for, and his payments to, the Empire Club VIP." Now this is where it gets dicey. He's not cleared, but he's cut loose under the "insufficient evidence" claim. Notably, there's no mention that it's insufficient evidence of "money laundering." Those words are never mentioned.
But more curious is that money laundering is perhaps the singular easiest crime to prove under these circumstances because it's simply a matter of following the money. To state that the evidence is insufficient is bizarre. Either it was shifted or it wasn't. Either he did it or he didn't. Insufficient evidence? Please.
Garcia sums it up in this curious passage:
"In light of the policy of the Department of Justice with respect to prostitution offenses and the longstanding practice of this Office, as well as Mr. SPITZER's acceptance of responsibility for his conduct, we have concluded that the public interest would not be further advanced by filing criminal charges in this matter."
Had this been merely an issue of prostitution, perhaps this statement wouldn't smell so disingenuous. But the prostitution angle was only the obvious, most sordid, part of the problem. So many other aspects of this matter are common fodder for the government, and result in a prosecution as predictably as the sun rises each morning. As for Spitzer's "acceptance of responsibility," since when does the government mind kicking a man when he's down? Hey, that's what they do best. They have so much experience at it.
My issue isn't with the government's handling of this matter. Giving Spitzer a pass on this one doesn't offend my sensibilities, and seems a fine exercise of discretion. My issue is that no one else will ever be the beneficiary of such kindness from the Southern District, not only getting a free ride on the admitted Mann Act violation if not the laundering, but their very own press release to announce a non-prosecution.
If only this was the way it worked for everybody.
Simple Justice by SHG - November 7, 2008
With a change in administration usually comes a change in the United States Attorney, and the Southern District of New York is no exception. Rather than leave loose threads, the current holder of the office, Michael Garcia, has chosen to close the door on a sordid chapter of New York history, the Eliot Spitzer scandal.
Don't, I repeat, Don't expect this to happen for you. The SDNY never announces that it will not be prosecuting someone. They did it for Spitzer.
Newsday and the New York Law Journal are reporting that Spitzer was not to be prosecuted. This comes from one of the most unique documents I've ever seen, a press release issued by Michael J. Garcia to announce a non-prosecution. Even the title of the release, which invariably names the target of government scrutiny, makes no mention of its subject. Instead, it demurely says, "Statement of United States Attorney Michael J. Garcia." Gee whiz, I wonder what that's about?
The release offers a few interesting insights about the government's decision not to pursue Spitzer:
ELIOT SPITZER has acknowledged to this Office that he was a client of, and made payments to, the Emperors Club VIP. Our investigation has shown that on multiple occasions, Mr. SPITZER arranged for women to travel from one state to another state to engage in prostitution. After a thorough investigation, this Office has uncovered no evidence of misuse of public or campaign funds. In addition, we have determined that there is insufficient evidence to bring charges against Mr. SPITZER for any offense relating to the withdrawal of funds for, and his payments to, the Emperors Club VIP.
First, that Spitzer admitted violating the Mann Act, and then the release says absolutely nothing further on the subject. Now some might argue that the Mann Act is old school, and nobody gets prosecuted for that anymore. Yeah? Tell that to ex-Judge/Jester Ronald Tills. Apparently, word of this benevolence never made it to the Western District of New York.
Next, Spitzer was cleared of using public or campaign funds. Huh? No one ever suggested that Spitzer, a multimillionaire by way of his father's real estate holdings, had his finger in the public till. This is a red herring.
And finally, that "there is insufficient evidence" as to "any offense relating to the withdrawal of funds for, and his payments to, the Empire Club VIP." Now this is where it gets dicey. He's not cleared, but he's cut loose under the "insufficient evidence" claim. Notably, there's no mention that it's insufficient evidence of "money laundering." Those words are never mentioned.
But more curious is that money laundering is perhaps the singular easiest crime to prove under these circumstances because it's simply a matter of following the money. To state that the evidence is insufficient is bizarre. Either it was shifted or it wasn't. Either he did it or he didn't. Insufficient evidence? Please.
Garcia sums it up in this curious passage:
"In light of the policy of the Department of Justice with respect to prostitution offenses and the longstanding practice of this Office, as well as Mr. SPITZER's acceptance of responsibility for his conduct, we have concluded that the public interest would not be further advanced by filing criminal charges in this matter."
Had this been merely an issue of prostitution, perhaps this statement wouldn't smell so disingenuous. But the prostitution angle was only the obvious, most sordid, part of the problem. So many other aspects of this matter are common fodder for the government, and result in a prosecution as predictably as the sun rises each morning. As for Spitzer's "acceptance of responsibility," since when does the government mind kicking a man when he's down? Hey, that's what they do best. They have so much experience at it.
My issue isn't with the government's handling of this matter. Giving Spitzer a pass on this one doesn't offend my sensibilities, and seems a fine exercise of discretion. My issue is that no one else will ever be the beneficiary of such kindness from the Southern District, not only getting a free ride on the admitted Mann Act violation if not the laundering, but their very own press release to announce a non-prosecution.
If only this was the way it worked for everybody.
Sunday, November 9, 2008
Judges Deserve Justice, Too.
What a mess- more selective enforcement of the rules by the corrupt Commission on Judicial Conduct.
Newsday - November 7, 2008
NEW YORK - A New York commission that monitors judicial conduct has determined that a Manhattan Criminal Court judge should be censured for presiding over two cases in which his personal lawyer appeared. The Commission on Judicial Conduct said Friday that Judge Michael R. Ambrecht made a "misleading" and "deceptive" disclosure about his relationship to the lawyer in one case and failed to disclose it at all in the other. Ambrecht's lawyer, John S. Martin, did not immediately return a call for comment. The commission investigates reports of judicial misbehavior and recommends punishments to the Appellate Division. A censure is the equivalent of a loud public scolding. The commission also can recommend the lesser penalty of admonition _ essentially a gentle warning; harsher punishments include suspension or permanent removal.
Here's the latest arbitrary ramblings of The Commission on Judicial Conduct:
In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to MICHAEL R. AMBRECHT, a Judge of the Court of Claims and Acting Justice of the Supreme Court, New York County.
THE COMMISSION:
Honorable Thomas A. Klonick, Chair
Stephen R. Coffey, Esq., Vice Chair
Joseph W. Belluck, Esq.
Colleen C. DiPirro
Richard D. Emery, Esq.
Paul B. Harding, Esq.
Elizabeth B. Hubbard
Marvin E. Jacob, Esq.
Honorable Jill Konviser
Honorable Karen K. Peters
Honorable Terry Jane Ruderman
APPEARANCES:
Robert H. Tembeckjian (Edward Lindner and Brenda Correa, Of Counsel) for the Commission
Martin & Obermaier LLC (by John S. Martin, Jr.), Olshan Grundman Frome Rosenzweig & Wolosky LLP (by Jeffrey A. Udell), and Joseph W. Bellacosa for the Respondent
The respondent, Michael R. Ambrecht, a Judge of the Court of Claims and an Acting Justice of the Supreme Court, New York County, was served with a Formal Written Complaint dated February 12, 2007, containing two charges. The Formal Written Complaint alleged that respondent initiated an investigation and issued an opinion which were or appeared to be motivated by political purposes (Charge I), and that he presided over two cases in which his personal attorney appeared (Charge II). Respondent filed a Verified Answer dated April 24, 2007.
By Order dated April 27, 2007, the Commission designated Honorable Richard D. Simons as referee to hear and report proposed findings of fact and conclusions of law. A hearing was held on August 13, 14, 15 and 16 and December 5, 2007, in New York City. The referee filed a report on January 18, 2008.
The parties submitted briefs with respect to the referee’s report. On June 19, 2008, the Commission heard oral argument and thereafter considered the record of the proceeding and made the following findings of fact.
1. Respondent has been a Judge of the Court of Claims since 2002 and is assigned to the criminal term of the Supreme Court in New York County.
As to Charge I of the Formal Written Complaint:
2. The charge is not sustained and therefore is dismissed.
As to Charge II of the Formal Written Complaint:
3. Respondent and Paul Shechtman, Esq., worked for the New York County district attorney’s office when Mr. Shechtman was counsel to the district attorney and respondent was an assistant district attorney. After leaving the district attorney’s office in 1995, respondent and Mr. Shechtman both worked for Governor Pataki in Albany.
4. In February 2006 respondent retained Mr. Shechtman to represent him in connection with an investigation by the Commission. Mr. Shechtman charged respondent his reduced rate for public employees, $250 per hour, as opposed to his usual fee of $600 per hour.
5. Mr. Shechtman represented the defendant in People v. Numark. Mr. Shechtman and assistant district attorney Brenda Fisher negotiated a plea agreement in which the defendant would waive prosecution by indictment, would plead guilty to a felony charge of offering a false instrument for filing and would pay a fine and/or restitution in lieu of serving jail time.
6. On June 15, 2006, Mr. Shechtman and Ms. Fisher appeared before respondent on the plea agreement in Numark. Shortly before the appearance, Mr. Shechtman told respondent that he had a matter before him on an agreed upon plea and asked respondent whether he felt comfortable presiding over it. Respondent said he felt he could keep the matter and would make a disclosure.
7. At the outset of the proceeding on June 15, 2006, respondent stated on the record:
“in the interest of full disclosure I want to put on the record that Mr. Shechtman and I have known each other for over 15 years, during which time we’ve had a professional and personal relationship which continues until today. Does anyone have any objection to that?”
Ms. Fisher responded, “No, your honor.” Respondent then accepted the plea agreement.
8. On its face, respondent’s disclosure was incomplete and deceptive in that respondent did not disclose that he had recently retained Mr. Shechtman to represent him and was paying him for his services.
9. In June 2006 Mr. Shechtman also appeared before respondent in People v. Kurland, in connection with a violation of probation. The Department of Probation was seeking a Declaration of Delinquency based on allegations that the defendant, who had pleaded guilty in 2005 to Criminal Possession of Marijuana in the Second Degree and had been sentenced by respondent to five years’ probation, had traveled outside the United States and did not provide his itinerary, in violation of restrictions imposed at sentencing. On June 19, 2006, the day before the scheduled appearance, Mr. Shechtman telephoned respondent’s chambers, spoke to respondent and requested a one-week adjournment because he was out of town. The next day, Mr. Shechtman sent a letter to respondent confirming the request for an adjournment and stating that he had advised the defendant that his appearance was not required on June 20th. Mr. Shechtman’s letter was not copied to the prosecution or the Department of Probation.
10. On June 20, 2006, respondent ordered a bench warrant for the defendant based on his non-appearance, and a Declaration of Delinquency was issued.
11. On June 23, 2006, respondent, represented by Mr. Shechtman, gave testimony at the Commission office.
12. On June 27, 2006, Mr. Shechtman and the defendant appeared before respondent in Kurland. Assistant district attorney Lisa Zito urged that the defendant be incarcerated and reminded respondent that at sentencing respondent had told the defendant that he faced incarceration if he violated the terms of his probation. Mr. Shechtman argued against incarceration.
13. Respondent vacated the bench warrant, stating that Mr. Shechtman had contacted the Court prior to the June 20th scheduled appearance and had requested that the defendant’s appearance be excused. Respondent adjourned the matter to September 19, 2006, imposed additional travel restrictions and directed that the defendant be monitored by the Department of Probation.
14. Respondent did not disclose that Mr. Shechtman was then representing him or make any mention of his relationship with Mr. Shechtman.
15. Mr. Shechtman was paid $25,000 for his representation of the defendant in Numark and $15,000 for his representation of the defendant in Kurland.
16. On June 28, 2006, respondent received a mass e-mail from the Advisory Committee on Judicial Ethics that included a recent advisory opinion (Op. 06-22), stating that a judge’s recusal was required on all matters involving his or her attorney until two years after the termination of the representation. Respondent sent the e-mail to Mr. Shechtman on July 17, 2006.
17. Respondent testified that before he received this e-mail he believed that his disqualification was not required when his personal attorney appeared before him if the relationship was disclosed and the conflict was waived.
18. From July 17 to September 19, 2006, respondent took no action on Kurland, did not disqualify himself from the case, and made no disclosure that Mr. Shechtman was his attorney. The defendant remained at liberty during this period.
19. On September 19, 2006, respondent transferred the Kurland case to Acting Supreme Court Justice William A. Wetzel. Mr. Shechtman contacted Ms. Zito after the proceeding and told her that the matter had been transferred since he represented respondent on “a small civil matter.”
20. In proceedings before the Commission, respondent testified that at the time he made his disclosure in Numark, he believed the disclosure was sufficient, but that he now recognizes that it was inadequate and that, even with full disclosure, he was prohibited from sitting on his attorney’s cases. As to the Kurland case, respondent claimed that he did not disclose his relationship with Mr. Shechtman in June 2006 because he confused the case with Numark and mistakenly believed he had already made a disclosure.
Upon the foregoing findings of fact, the Commission concludes as a matter of law that respondent violated Sections 100.1, 100.2(A), 100.2(C), 100.3(B)(1), 100.3(B)(6)(a) and 100.3(E)(1) of the Rules Governing Judicial Conduct (“Rules”) and should be disciplined for cause, pursuant to Article 6, Section 22, subdivision a, of the New York State Constitution and Section 44, subdivision 1, of the Judiciary Law. Charge II of the Formal Written Complaint is sustained insofar as it is consistent with the above findings and conclusions, and respondent’s misconduct is established. Charge I is not sustained and therefore is dismissed.
A judge’s disqualification is required in any matter in which the judge’s impartiality “might reasonably be questioned” (Rules, §100.3[E][1]). Under guidelines provided in numerous opinions of the Advisory Committee on Judicial Ethics, disqualification in matters involving the judge’s personal attorney is required during the period of representation and thereafter for two years (see, e.g., Adv. Op. 92-54, 93-09, 97-135, 99-67). See also, Matter of Merrill, 2008 Annual Report 181 (Comm on Judicial Conduct); Matter of Ross, 1990 Annual Report 153 (Comm on Judicial Conduct); Matter of Phillips, 1990 Annual Report 145 (Comm on Judicial Conduct). Respondent violated these standards by failing to disqualify himself in two cases in which the defendants were represented by an attorney who was contemporaneously representing respondent in connection with a Commission investigation.
A few months after he had retained Mr. Shechtman to represent him, respondent accepted a plea from the defendant in People v. Numark, with Mr. Shechtman standing before him. Although respondent has testified that a judge’s role with respect to such pleas is “almost ministerial,” convicting and sentencing a defendant indisputably requires the exercise of judicial power and discretion. More to the point, it is manifestly improper for a judge to sit on a case in which the judge’s personal attorney appears, regardless of the nature of the case. Here, the impropriety was exacerbated by respondent’s misleading disclosure on the record that he and Mr. Shechtman “have had a professional and personal relationship which continues until today.” By not stating that Mr. Shechtman was then representing him, respondent’s disclosure was not just incomplete but deceptive, since it could be viewed as referring solely to a relationship arising out of their previous public employment.
While respondent now acknowledges the impropriety of sitting on his attorney’s cases, he testified that when Mr. Shechtman appeared before him, he believed that the conflict was waivable and that he could hear Mr. Shechtman’s cases if disclosure of the relationship was made. It is difficult to understand how any judge – particularly a judge with respondent’s experience and talents – could fail to recognize, even without the guidance provided by the Advisory Opinions, that such a conflict required prompt recusal or, at the very least, presented a significant issue that warranted exploration. Even a telephone call to the Advisory Committee would likely have provided appropriate guidance. Moreover, in light of respondent’s proffered rationale, his inadequate disclosure was particularly serious. By failing to disclose that Mr. Shechtman was his attorney, respondent appeared to be concealing the most significant aspect of their relationship and thus deprived the district attorney of a meaningful opportunity to object to the judge’s participation.
A short time later, respondent handled People v. Kurland, in which the defendant represented by Mr. Shechtman was accused of a probation violation. Mr. Shechtman initially contacted respondent ex parte to request an adjournment, a contact which should have alerted respondent to the conflict in this case. Respondent ordered a bench warrant when the defendant failed to appear and, a week later, sat on the case when Mr. Shechtman appeared with the defendant. (In the intervening week, respondent testified at the Commission office, with Mr. Shechtman at his side.) Without making any disclosure of his relationship with the defendant’s attorney, respondent vacated the bench warrant, noting Mr. Shechtman’s earlier request for an adjournment. Respondent then rejected the district attorney’s request that the defendant be incarcerated and put the case over for three months.
Respondent claims that he confused the Kurland case with Numark and, as a result, mistakenly believed he had already placed his relationship with Mr. Shechtman on the record. In any case, disclosure would have been inadequate since respondent should not have sat on Mr. Shechtman’s cases even with full disclosure. Moreover, the record reflects that subsequently, after learning that he was prohibited from sitting on his attorney’s cases, respondent took no action to recuse himself or otherwise transfer the Kurland case until two months later, when the case was again on the court calendar. In the interim, the defendant remained at liberty as a result of respondent’s exercise of discretion.
Throughout this period, respondent, who was paying Mr. Shechtman a reduced rate for his services, regularly conferred with the attorney, who was earning substantial fees from the defendants in Numark and Kurland. Under the circumstances, respondent’s impartiality “might reasonably be questioned” (Rules, §100.3[E][1]), and his actions conveyed the appearance of favoritism. Although respondent maintains that his handling of both cases was routine and did not afford any special treatment to Mr. Shechtman’s clients, respondent’s insensitivity to his ethical responsibilities created an appearance of impropriety permitting an adverse inference to be drawn. This departure from the high standards of conduct required of judges jeopardizes the public’s respect for the judiciary as a whole.
In considering the sanction, we note that respondent has acknowledged his misconduct and pledges that he will not repeat it. In view of these factors, we conclude that censure is appropriate.
By reason of the foregoing, the Commission determines that the appropriate disposition is censure.
Judge Klonick, Mr. Coffey, Mr. Belluck, Ms. DiPirro, Mr. Harding, Ms. Hubbard and Judge Peters concur, except that Judge Klonick, Ms. DiPirro and Ms. Hubbard dissent as to Charge I and vote to sustain the charge.
Mr. Emery, Judge Konviser and Judge Ruderman did not participate.
Mr. Jacob was not present.
Dated: October 29, 2008
CONCURRING OPINION BY MR. BELLUCK
I write to explain my concurrence in the Commission’s vote not to sustain Charge I and to clarify my concurrence in sustaining Charge II.
The chilling effect on judges if the Commission were to sustain Charge I should be intolerable to anyone who believes in a healthy democratic society and a vibrant judiciary free to function without the threat of retaliation.
Judicial independence has been a cornerstone of our American democracy since its founding over 200 years ago. It was recognized by our founding fathers. The Declaration of Independence, in criticizing King George III for making “judges dependent upon his will alone for the tenure of their offices and the amount and payment of their salaries,” testifies to this fact. In 1789, Thomas Jefferson wrote to James Madison: “The judiciary... is a body which, if rendered independent and kept strictly to their own department, merits great confidence for their learning and integrity.” The Constitution protected judicial independence because the founders had firsthand experience being a persecuted minority in courts unfairly controlled by a ruling party. Indeed, the Constitutional safeguards of appointments for life, a difficult impeachment process and non-diminishment of salaries were specifically designed to protect the independence of the judiciary. Throughout our country’s history, our greatest legal scholars and jurists have been staunch defenders of this independence. “I have always thought, from my earliest youth till now that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary” (Excerpt from John Marshall, address to the Virginia State Convention of 1829-30, Proceedings and Debates of the Virginia State Convention of 1829-30 at 616 [1830]). In more than 200 years, only 13 attempts have been made to formally impeach federal judges, and only seven judges have been convicted and removed from office—none because Congress disagreed with a judge’s judicial philosophy or with a particular decision. Emerging democracies look to our system of an independent judiciary as a model.
Against this backdrop, a charge was brought against Judge Ambrecht for issuing a decision that allegedly was politically motivated.
The history of the United States is paved with judicial opinions that expressed unpopular political viewpoints or that had political facets and impact. E.g., Plessy v. Ferguson and Brown v. Board of Education. While the facts and issues in the underlying matter handled by respondent may not have great societal import, punishing the judge for the contents of his opinion most certainly would have. To be sure, a judicial opinion is not so sacrosanct that it can never be the basis for a misconduct finding, e.g., if it was demonstrably motivated by an improper purpose. This case could not be further from such a patently offensive scenario.
At its core, the Formal Written Complaint in this matter alleged that respondent issued a judicial opinion with the intent to influence a political election. After a lengthy hearing, it became clear that the argument for misconduct was based on (i) the contents of the opinion (critical of a public official), (ii) the timing of the opinion (issued six days before a primary election) and (iii) respondent’s frank acknowledgment that he was aware that the opinion might have a political impact. Moreover, it was written in response to an application to withdraw a pending motion. A finding of misconduct based on such slender facts would indeed be a grave threat to the independence of the judiciary. Therefore, as to Charge I of the Formal Written Complaint, I concur with the majority that the charge should not be sustained.
The facts underlying this matter are as follows.
From 1993 to 1997, a group of defendants plead guilty and paid restitution in People v. Alvarez, a case involving kickbacks to real estate managers. In 1996 Acting Supreme Court Justice Leslie Crocker Snyder appoints a special master to oversee the restitution fund. In 1997 certain records related to the restitution fund are sealed by an Appellate Division justice.
In early 2005, incumbent District Attorney Robert M. Morgenthau is challenged in a Democratic primary by former Judge Snyder.
In March 2005 the District Attorney begins to investigate the restitution fund. The District Attorney’s office is unable to locate the pertinent records in its own files and is told by a court clerk that the Alvarez file is sealed. The District Attorney’s office then applies ex parte to respondent, a former assistant district attorney in Morgenthau’s office, to unseal the Alvarez records. Respondent refuses to sign an ex parte order and requires the District Attorney to file an Order to Show Cause, on notice, to unseal these records.
In a telephone conference on July 14, the parties agree that ADA Dugan can review the Alvarez records at the special master’s law firm.
On July 21, ADA Dugan goes to the firm and spends several hours reviewing and copying records. Thereafter, Dugan advises the Court that, based on his review, he has determined that most of the documents covered by the unsealing request were not sealed, including Judge Snyder’s orders related to the special master’s compensation. The ADA states that only eleven requests for compensation appear to be sealed and, therefore, he is narrowing the unsealing request to those documents only. The attorney for the special master vigorously disputes the ADA’s representations and argues that the application is politically motivated.
On August 15, a newspaper article appears in the New York Post regarding Judge Snyder’s role in the Alvarez matter. The article contains specific details about eleven Snyder orders approving compensation to the special master.
On August 16, the special master’s lawyer asks respondent to take sworn statements regarding the leak of sealed information to the New York Post. Respondent, believing that he was being manipulated and that the court’s jurisdiction to rule on the unsealing application had been circumvented by whoever had provided the information to the Post, orders a hearing on the apparent breach of the sealing order.
On August 19, 2005, respondent holds a hearing at which the attorneys appear. ADA Dugan tells the Court that the Chief of the Investigations Division had asked him in early 2005 to review the file in Alvarez, a matter that had concluded some years earlier.
On August 31, 2005, respondent issues 26 written interrogatories to the Chief of the Investigations Division regarding the unsealing request in Alvarez and the documents Dugan had obtained from the special master’s law firm. Respondent directs a response by September 2, 2005.
On September 2, the District Attorney commences an Article 78 proceeding in the Appellate Division, First Department, challenging respondent’s authority to issue the written interrogatories. At an appearance before Justice James M. Catterson, an oral agreement is reached between the District Attorney and the Attorney General’s office, appearing on behalf of respondent, calling for respondent to withdraw the interrogatories and for the District Attorney to withdraw the Article 78 proceeding and the unsealing application. The results of this conference are communicated to respondent by telephone.
On September 6, 2005, the District Attorney writes to respondent withdrawing the application to unseal documents in Alvarez.
On September 7, 2005, respondent issues a six-page decision which grants the application to withdraw the unsealing request and criticizes the District Attorney for an “apparent misuse of a public office for inappropriate political purposes.”
On September 13, 2005, the primary election for the Democratic nomination for District Attorney is held.
The issue is whether the proof established that respondent issued a decision that was motivated by political considerations. As the record here reveals, such proof on balance was conspicuously absent.
There is no persuasive evidence in the record to disprove respondent’s claim that he acted consistently to protect the integrity of his court. It is clear that respondent felt he was being manipulated by the District Attorney’s office. It is undisputed that he believed that the District Attorney’s office had misused its office for political purposes, leaked sealed court records containing information detrimental to the District Attorney’s opponent in the primary election and, subsequently, interfered with the Court’s attempt to determine who at the office was responsible for these acts. It is also undisputed that respondent issued written interrogatories to the District Attorney’s office in an attempt to resolve unanswered questions about the source of the leaked material, that he had authority to inquire into the apparent leak of sealed material, and that he had authority to issue a decision on the application to withdraw the unsealing request. Respondent’s commentary in his six-page decision expresses his views regarding this sequence of events:
The Court, while lacking all the necessary facts to determine the source of the leaked information, is compelled to express its concern over the apparent misuse of a public office for inappropriate political purposes. Though ADAs Dugan and Dwyer consistently denied a political facet to the investigation, the Court finds such assertion totally incredible and belied by the People’s own actions. Moreover, the Court can only conclude that ADA Castleman’s refusal to answer the submitted interrogatories was intended to prevent the Court from completing the fact finding required for it to determine whether and by whom the sealing order had been violated.
The Court further takes issue with the People’s completely illogical position, proffered only after the Court had initiated an inquiry regarding the leak, that Mr. Hershmann’s compensation applications and Judge Snyder’s Orders were never under seal and were thus available to the New York Post and the public in general and the unsealing order which they sought was unnecessary. It is undisputed that the entire purpose of the Order to Show Cause was to determine which documents were encompassed by the sealing order. For the People to now make a unilateral determination that the subject Orders were not sealed is presumptuous and denigrating to the very Court which the People enlisted to make that determination. (Comm. Ex. 25)
Based on the evidence adduced at the hearing, the attempt to attribute respondent’s acts and the above-quoted decision to an improper motivation was no more than speculative and was properly rejected by the Commission.
Far from there being proof that respondent was politically motivated to issue his decision, the record is clear that he was a supporter of Mr. Morgenthau and, indeed, would have voted for him if he lived in Manhattan. For example, respondent testified at the hearing:
"I hold Mr. Morgenthau in high esteem. I worked for him for many, many years, he gave me great opportunities in my career." (Tr. 146)
"Q. [W]ould you compare your relationship with Leslie Crocker Snyder and
your relationship with Robert M. Morgenthau?
A. There is no comparison. I knew Leslie simply because she was a colleague and we had brief interactions at judicial functions. I looked upon Mr. Morgenthau as a father figure for many years. Having worked for him while in college, and I was always very grateful for the many opportunities he gave me to be exposed to the practice of law at such an early age ending college, which is what prompted me to pursue a career in law." (Tr. 236-37)
[After testifying that he votes in Nassau County, respondent was asked:]
“Q. If you had been able to vote the primary election in 2005 between Mr. Morgenthau and Justice Snyder, for whom would you have voted?
A. Robert Morgenthau.
Q. And why is that?
MR. FRIEDBERG: Move to strike. It’s speculative.
JUDGE SIMONS: Strike it out.
Q. When that election was going on, who did you hope would win that election?
A. Robert Morgenthau.
Q. And why is that?
A. I hold Robert Morgenthau in the highest esteem. He is someone that gave me not just one opportunity, but many opportunities through the course of my education and career to give public service and to learn the practice of law. And I admire and supported him throughout the years.
Q. Did you ever work on any of his campaigns?
A. I did.
Q. Do you recall how many of those campaigns you worked on?
A. Well, I only worked on the 1985 campaign. And I was a college student at the time, and I was on the non-legal staff. So it was permissible at that time to volunteer on your own time to work on Mr. Morgenthau's campaign.” (Tr. 813-14)
[Respondent states that subsequently the district attorney “implemented a revised rule that basically barred any assistant district attorney from working voluntarily or otherwise on his future campaigns.”]
"...Q. Did you ever contribute to Mr. Morgenthau’s campaigns?
A. Well, you were allowed to contribute financially, and I always did that, yes.
Q. Did that continue after you left the office but before you became a judge?
A. Correct. I contributed even while on the Governor’s staff." (Tr. 815-16)
Respondent’s law clerk was asked:
"Q. During the entire time that the Alvarez matter was pending before him, did Justice Ambrecht ever indicate to you what his personal views were regarding the merits of the candidacies of Judge Leslie Crocker Snyder on the one hand and Robert Morgenthau on the other in that primary race?
A. No.
Q. Have you ever heard to this day Justice Ambrecht express the view that he supported the candidacy of Leslie Crocker Snyder for the District Attorney in New York County?
A. Never.
Q. And during the entire time that the matter was pending before you, have you ever heard Justice Ambrecht express any intent whatsoever to assist Justice Snyder in her candidacy or quest to become District Attorney of New York County?
A. No. To the contrary. The gist of any conversation we ever had and not even about this election but about -- let me rephrase that. The conversations that I had with Judge Ambrecht would have led me to believe to the contrary, that he would have -- may have been a supporter of Robert Morgenthau. He appreciated several career opportunities that the District Attorney had given him, he had fond feelings for the office, and respected Mr. Morgenthau. And I never had any reason to believe otherwise, until this time." (Tr. 563-65)
No contrary evidence concerning respondent’s personal political views, or any supposed bias, was presented.
The dissent argues that respondent issued a decision in a matter that had already been concluded (Dissenting opinion, p. 3). Not so. During the oral argument on this matter, Commission counsel acknowledged that the September 6, 2005 letter from the District Attorney withdrawing the unsealing request was in fact an “application” to withdraw a motion (Oral argument, p. 19). Commission counsel also acknowledged that respondent, and, indeed, any judge, has the authority to issue a decision on an application to withdraw an unsealing request (Id. at 18-19).
The fact that the referee concluded that “Circumstances did not require a written decision” (Referee’s report, p. 3) does not speak to whether respondent had the right to issue such a decision. Nor did the fact that Justice Catterson had apparently brokered an agreement amongst the parties, and had commented that he wanted the matter to “go away,” preclude respondent from writing an opinion. Respondent was not subject to any order by the Appellate Division or any other legal bar that would preclude him from issuing a decision addressing the matters before him.
As to the argument that the timing of the decision (six days before the primary) is conclusive evidence of an improper purpose, a judge might equally be subject to criticism for delaying a decision which might be detrimental to a candidate until after an election. Whenever the opinion was issued, the timing would be perceived by some as politically motivated, regardless of the judge’s intent. In that regard, I cannot agree with the dissent’s view that since it was unnecessary for respondent to issue such a decision shortly before the election, it must be concluded that he did so for the purpose of influencing the election.
Nor is there merit to Commission counsel’s insistence that respondent admitted criticizing the District Attorney’s office “without facts to back it up.” While the opinion states that the court “lack[s] all the necessary facts to determine the source of the leaked information,” respondent has explained that he believed the facts before him pointed to the District Attorney’s office as the source of the leak, though he lacked adequate facts to accuse a particular individual. The very fact that a judge has been called upon to explain and justify statements in a judicial opinion, on these facts, graphically demonstrates the impropriety of this unprecedented intrusion into judicial independence.
While I strongly believe that investigation into these matters was unwarranted, it is important to underscore that this decision fulfills the Commission’s mandate to promote public confidence in the integrity of the judiciary, which includes not only holding judges accountable for misconduct but, equally important, dismissing meritless complaints.
For these reasons, I concur that Charge I should not be sustained.
With respect to Charge II, I concur in the sanction with some reservation. The majority determination lays out the facts regarding the appearances of Mr. Shechtman before respondent in two cases after respondent had retained Mr. Shechtman to represent him with respect to Charge I.
It is indeed troubling that respondent would allow his own attorney to appear before him. It is not a credible defense to this charge that respondent was not aware of the specific rules or Advisory Opinions prohibiting such conduct. It simply does not pass the smell test for any judge to allow his or her own attorney to appear on a pending matter without, at the very least, making full disclosure of the relationship.
My reservations in sustaining Charge II are as follows.
In my view, the fact that Charge I was even investigated by the Commission was an encroachment into the independence of the judiciary, and since it is clear that Charge II would never have arisen had it not been for the investigation into Charge I, I am troubled by upholding any charges against respondent. While it is often the case that the cover-up is worse than the crime, in this case, the “crime” should never have been charged.
Secondly, I am troubled by the apparent conduct of Mr. Shechtman. While Mr. Shechtman was not subject to the jurisdiction of the Commission and, therefore, had no opportunity to defend his actions, the appearance of what occurred here is not good. Mr. Shechtman, well known as an ethics advisor and indeed a former chair of the State Ethics Commission, was hired by respondent for the express purpose of representing him with respect to Charge I. Notwithstanding this, it appears that Mr. Shechtman placed respondent in the very situation which gave rise to further charges of wrongdoing. Moreover, Mr. Shechtman profited handsomely from this. Indeed, he earned over $40,000 on the two cases in which he appeared before respondent while serving as respondent’s attorney. While it does not alleviate the burden on respondent to avoid any appearance of impropriety, in my view Mr. Shechtman bears a considerable portion of the blame.
Dated: October 29, 2008
OPINION BY JUDGE KLONICK, DISSENTING AS TO CHARGE I AND CONCURRING AS TO SANCTION
As to Charge I of the Formal Written Complaint, I respectfully dissent.
Specifically, the Complaint alleged that the Respondent, acting or appearing to act for politically motivated reasons, publicly accused the New York County District Attorney’s Office of abusing its authority in an effort to embarrass the candidate then running against the incumbent DA in the 2005 Democratic primary. The Referee concluded, following an extensive hearing, that this charge had been sustained and that Respondent’s intent was to affect the election. I agree.
A brief recitation of the facts is necessary to put the Respondent’s actions into context.
In 2005, incumbent DA Robert M. Morgenthau was challenged in the Democratic primary by former Judge Leslie Crocker Snyder. With respect to a matter which was pending before him involving a fiduciary appointment Judge Snyder had made to a firm she later joined, the Respondent was obviously disturbed by an alleged leak of information to the media. The resulting media articles portrayed former Judge Snyder in a negative light. The Respondent, in an effort to find the source of this breach of confidentiality, issued interrogatories, on the Court’s own motion, directed to the District Attorney’s Office.
The District Attorney’s Office opposed answering these interrogatories and initiated an Article 78 proceeding before the Appellate Division, First Department, challenging the Respondent’s authority to issue such interrogatories. An appearance on Friday, September 2, 2005 before Appellate Division Justice James M. Catterson resulted in a settlement of the matter. The District Attorney’s Office agreed to withdraw the Article 78 proceeding immediately and to also withdraw the application to unseal certain documents which was pending before the Respondent. In return, the Attorney General’s Office, appearing on behalf of the Respondent, agreed to withdraw the interrogatories. Judge Catterson made it clear to the attorneys the matter was over and that he did not want to see any more publicity about it. The results of the proceeding at the Appellate Division were communicated that day by the Assistant Attorney General to the Respondent’s Law Clerk, as well as directly to the Respondent by telephone. The Respondent’s Law Clerk even remarked to the Assistant Attorney General after being told of the resolution: “That’s fine, I don’t have to write an opinion over the weekend” (Referee’s Report, Appendix A ¶48; Tr. 689).
The District Attorney’s Office then withdrew its application before the Respondent on September 6, 2005. The next day, September 7, 2005 and six days before the primary election, the Respondent issued a six-page Decision wherein he severely criticized the incumbent District Attorney and his office. The Decision, inter alia, criticized the District Attorney’s Office for its “apparent misuse of a public office for inappropriate political purposes” (Referee’s Report, Appendix A ¶54; Ex. 25, 50).
Based upon testimony and evidence given at the hearing in this matter before Referee Simons, it appears that many of the conclusions in the Respondent’s Decision issued on September 7, 2005 are based upon speculation and innuendos, without any basis in fact.
The Referee concluded that: “The circumstances did not require a written decision, let alone one which, based solely on Respondent’s speculations, castigated a public officer for abuse of office, or at a minimum, improper conduct. The error was compounded when Respondent knowing the decision would become public issued it a few days before the District Attorney faced an opponent in a primary election” (Referee’s Report, p. 3).
It is clear that the matter pending before the Respondent had been concluded by a settlement between the parties before the issuance of the Decision. Information concerning the settlement had been communicated directly to the Judge and his Law Clerk several days before he issued his Decision, a decision which was highly critical of an elected official on the eve of a contested primary election. Since there was no necessity for such a written Decision, one is left with but one conclusion: The Respondent, by his after-the-fact decision, was attempting to enter the political arena and influence the election.
A judge is required to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” (Rules Governing Judicial Conduct, §100.2[A]). In fact, “[t]he ability to be impartial is an indispensable requirement for a judicial officer.” Matter of Sardino, 58 NY2d 286, 290 (1983).
The Respondent certainly had the authority to inquire into and discipline alleged attorney misconduct after any settlement. He could have held a hearing to determine the source of the alleged leaks of the purportedly sealed documents and then discipline any of the parties appropriately. He chose, instead, to issue a decision in a matter which had already been concluded.
I can only conclude, as the Referee did, that the Respondent’s actions were politically motivated and a blatant attempt to influence an election. I vote to sustain Charge I and that the appropriate sanction is censure.
Dated: October 29, 2008
In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to MICHAEL R. AMBRECHT, a Judge of the Court of Claims and Acting Justice of the Supreme Court, New York County.
THE COMMISSION:
Honorable Thomas A. Klonick, Chair
Stephen R. Coffey, Esq., Vice Chair
Joseph W. Belluck, Esq.
Colleen C. DiPirro
Richard D. Emery, Esq.
Paul B. Harding, Esq.
Elizabeth B. Hubbard
Marvin E. Jacob, Esq.
Honorable Jill Konviser
Honorable Karen K. Peters
Honorable Terry Jane Ruderman
APPEARANCES:
Robert H. Tembeckjian (Edward Lindner and Brenda Correa, Of Counsel) for the Commission
Martin & Obermaier LLC (by John S. Martin, Jr.), Olshan Grundman Frome Rosenzweig & Wolosky LLP (by Jeffrey A. Udell), and Joseph W. Bellacosa for the Respondent
The respondent, Michael R. Ambrecht, a Judge of the Court of Claims and an Acting Justice of the Supreme Court, New York County, was served with a Formal Written Complaint dated February 12, 2007, containing two charges. The Formal Written Complaint alleged that respondent initiated an investigation and issued an opinion which were or appeared to be motivated by political purposes (Charge I), and that he presided over two cases in which his personal attorney appeared (Charge II). Respondent filed a Verified Answer dated April 24, 2007.
By Order dated April 27, 2007, the Commission designated Honorable Richard D. Simons as referee to hear and report proposed findings of fact and conclusions of law. A hearing was held on August 13, 14, 15 and 16 and December 5, 2007, in New York City. The referee filed a report on January 18, 2008.
The parties submitted briefs with respect to the referee’s report. On June 19, 2008, the Commission heard oral argument and thereafter considered the record of the proceeding and made the following findings of fact.
1. Respondent has been a Judge of the Court of Claims since 2002 and is assigned to the criminal term of the Supreme Court in New York County.
As to Charge I of the Formal Written Complaint:
2. The charge is not sustained and therefore is dismissed.
As to Charge II of the Formal Written Complaint:
3. Respondent and Paul Shechtman, Esq., worked for the New York County district attorney’s office when Mr. Shechtman was counsel to the district attorney and respondent was an assistant district attorney. After leaving the district attorney’s office in 1995, respondent and Mr. Shechtman both worked for Governor Pataki in Albany.
4. In February 2006 respondent retained Mr. Shechtman to represent him in connection with an investigation by the Commission. Mr. Shechtman charged respondent his reduced rate for public employees, $250 per hour, as opposed to his usual fee of $600 per hour.
5. Mr. Shechtman represented the defendant in People v. Numark. Mr. Shechtman and assistant district attorney Brenda Fisher negotiated a plea agreement in which the defendant would waive prosecution by indictment, would plead guilty to a felony charge of offering a false instrument for filing and would pay a fine and/or restitution in lieu of serving jail time.
6. On June 15, 2006, Mr. Shechtman and Ms. Fisher appeared before respondent on the plea agreement in Numark. Shortly before the appearance, Mr. Shechtman told respondent that he had a matter before him on an agreed upon plea and asked respondent whether he felt comfortable presiding over it. Respondent said he felt he could keep the matter and would make a disclosure.
7. At the outset of the proceeding on June 15, 2006, respondent stated on the record:
“in the interest of full disclosure I want to put on the record that Mr. Shechtman and I have known each other for over 15 years, during which time we’ve had a professional and personal relationship which continues until today. Does anyone have any objection to that?”
Ms. Fisher responded, “No, your honor.” Respondent then accepted the plea agreement.
8. On its face, respondent’s disclosure was incomplete and deceptive in that respondent did not disclose that he had recently retained Mr. Shechtman to represent him and was paying him for his services.
9. In June 2006 Mr. Shechtman also appeared before respondent in People v. Kurland, in connection with a violation of probation. The Department of Probation was seeking a Declaration of Delinquency based on allegations that the defendant, who had pleaded guilty in 2005 to Criminal Possession of Marijuana in the Second Degree and had been sentenced by respondent to five years’ probation, had traveled outside the United States and did not provide his itinerary, in violation of restrictions imposed at sentencing. On June 19, 2006, the day before the scheduled appearance, Mr. Shechtman telephoned respondent’s chambers, spoke to respondent and requested a one-week adjournment because he was out of town. The next day, Mr. Shechtman sent a letter to respondent confirming the request for an adjournment and stating that he had advised the defendant that his appearance was not required on June 20th. Mr. Shechtman’s letter was not copied to the prosecution or the Department of Probation.
10. On June 20, 2006, respondent ordered a bench warrant for the defendant based on his non-appearance, and a Declaration of Delinquency was issued.
11. On June 23, 2006, respondent, represented by Mr. Shechtman, gave testimony at the Commission office.
12. On June 27, 2006, Mr. Shechtman and the defendant appeared before respondent in Kurland. Assistant district attorney Lisa Zito urged that the defendant be incarcerated and reminded respondent that at sentencing respondent had told the defendant that he faced incarceration if he violated the terms of his probation. Mr. Shechtman argued against incarceration.
13. Respondent vacated the bench warrant, stating that Mr. Shechtman had contacted the Court prior to the June 20th scheduled appearance and had requested that the defendant’s appearance be excused. Respondent adjourned the matter to September 19, 2006, imposed additional travel restrictions and directed that the defendant be monitored by the Department of Probation.
14. Respondent did not disclose that Mr. Shechtman was then representing him or make any mention of his relationship with Mr. Shechtman.
15. Mr. Shechtman was paid $25,000 for his representation of the defendant in Numark and $15,000 for his representation of the defendant in Kurland.
16. On June 28, 2006, respondent received a mass e-mail from the Advisory Committee on Judicial Ethics that included a recent advisory opinion (Op. 06-22), stating that a judge’s recusal was required on all matters involving his or her attorney until two years after the termination of the representation. Respondent sent the e-mail to Mr. Shechtman on July 17, 2006.
17. Respondent testified that before he received this e-mail he believed that his disqualification was not required when his personal attorney appeared before him if the relationship was disclosed and the conflict was waived.
18. From July 17 to September 19, 2006, respondent took no action on Kurland, did not disqualify himself from the case, and made no disclosure that Mr. Shechtman was his attorney. The defendant remained at liberty during this period.
19. On September 19, 2006, respondent transferred the Kurland case to Acting Supreme Court Justice William A. Wetzel. Mr. Shechtman contacted Ms. Zito after the proceeding and told her that the matter had been transferred since he represented respondent on “a small civil matter.”
20. In proceedings before the Commission, respondent testified that at the time he made his disclosure in Numark, he believed the disclosure was sufficient, but that he now recognizes that it was inadequate and that, even with full disclosure, he was prohibited from sitting on his attorney’s cases. As to the Kurland case, respondent claimed that he did not disclose his relationship with Mr. Shechtman in June 2006 because he confused the case with Numark and mistakenly believed he had already made a disclosure.
Upon the foregoing findings of fact, the Commission concludes as a matter of law that respondent violated Sections 100.1, 100.2(A), 100.2(C), 100.3(B)(1), 100.3(B)(6)(a) and 100.3(E)(1) of the Rules Governing Judicial Conduct (“Rules”) and should be disciplined for cause, pursuant to Article 6, Section 22, subdivision a, of the New York State Constitution and Section 44, subdivision 1, of the Judiciary Law. Charge II of the Formal Written Complaint is sustained insofar as it is consistent with the above findings and conclusions, and respondent’s misconduct is established. Charge I is not sustained and therefore is dismissed.
A judge’s disqualification is required in any matter in which the judge’s impartiality “might reasonably be questioned” (Rules, §100.3[E][1]). Under guidelines provided in numerous opinions of the Advisory Committee on Judicial Ethics, disqualification in matters involving the judge’s personal attorney is required during the period of representation and thereafter for two years (see, e.g., Adv. Op. 92-54, 93-09, 97-135, 99-67). See also, Matter of Merrill, 2008 Annual Report 181 (Comm on Judicial Conduct); Matter of Ross, 1990 Annual Report 153 (Comm on Judicial Conduct); Matter of Phillips, 1990 Annual Report 145 (Comm on Judicial Conduct). Respondent violated these standards by failing to disqualify himself in two cases in which the defendants were represented by an attorney who was contemporaneously representing respondent in connection with a Commission investigation.
A few months after he had retained Mr. Shechtman to represent him, respondent accepted a plea from the defendant in People v. Numark, with Mr. Shechtman standing before him. Although respondent has testified that a judge’s role with respect to such pleas is “almost ministerial,” convicting and sentencing a defendant indisputably requires the exercise of judicial power and discretion. More to the point, it is manifestly improper for a judge to sit on a case in which the judge’s personal attorney appears, regardless of the nature of the case. Here, the impropriety was exacerbated by respondent’s misleading disclosure on the record that he and Mr. Shechtman “have had a professional and personal relationship which continues until today.” By not stating that Mr. Shechtman was then representing him, respondent’s disclosure was not just incomplete but deceptive, since it could be viewed as referring solely to a relationship arising out of their previous public employment.
While respondent now acknowledges the impropriety of sitting on his attorney’s cases, he testified that when Mr. Shechtman appeared before him, he believed that the conflict was waivable and that he could hear Mr. Shechtman’s cases if disclosure of the relationship was made. It is difficult to understand how any judge – particularly a judge with respondent’s experience and talents – could fail to recognize, even without the guidance provided by the Advisory Opinions, that such a conflict required prompt recusal or, at the very least, presented a significant issue that warranted exploration. Even a telephone call to the Advisory Committee would likely have provided appropriate guidance. Moreover, in light of respondent’s proffered rationale, his inadequate disclosure was particularly serious. By failing to disclose that Mr. Shechtman was his attorney, respondent appeared to be concealing the most significant aspect of their relationship and thus deprived the district attorney of a meaningful opportunity to object to the judge’s participation.
A short time later, respondent handled People v. Kurland, in which the defendant represented by Mr. Shechtman was accused of a probation violation. Mr. Shechtman initially contacted respondent ex parte to request an adjournment, a contact which should have alerted respondent to the conflict in this case. Respondent ordered a bench warrant when the defendant failed to appear and, a week later, sat on the case when Mr. Shechtman appeared with the defendant. (In the intervening week, respondent testified at the Commission office, with Mr. Shechtman at his side.) Without making any disclosure of his relationship with the defendant’s attorney, respondent vacated the bench warrant, noting Mr. Shechtman’s earlier request for an adjournment. Respondent then rejected the district attorney’s request that the defendant be incarcerated and put the case over for three months.
Respondent claims that he confused the Kurland case with Numark and, as a result, mistakenly believed he had already placed his relationship with Mr. Shechtman on the record. In any case, disclosure would have been inadequate since respondent should not have sat on Mr. Shechtman’s cases even with full disclosure. Moreover, the record reflects that subsequently, after learning that he was prohibited from sitting on his attorney’s cases, respondent took no action to recuse himself or otherwise transfer the Kurland case until two months later, when the case was again on the court calendar. In the interim, the defendant remained at liberty as a result of respondent’s exercise of discretion.
Throughout this period, respondent, who was paying Mr. Shechtman a reduced rate for his services, regularly conferred with the attorney, who was earning substantial fees from the defendants in Numark and Kurland. Under the circumstances, respondent’s impartiality “might reasonably be questioned” (Rules, §100.3[E][1]), and his actions conveyed the appearance of favoritism. Although respondent maintains that his handling of both cases was routine and did not afford any special treatment to Mr. Shechtman’s clients, respondent’s insensitivity to his ethical responsibilities created an appearance of impropriety permitting an adverse inference to be drawn. This departure from the high standards of conduct required of judges jeopardizes the public’s respect for the judiciary as a whole.
In considering the sanction, we note that respondent has acknowledged his misconduct and pledges that he will not repeat it. In view of these factors, we conclude that censure is appropriate.
By reason of the foregoing, the Commission determines that the appropriate disposition is censure.
Judge Klonick, Mr. Coffey, Mr. Belluck, Ms. DiPirro, Mr. Harding, Ms. Hubbard and Judge Peters concur, except that Judge Klonick, Ms. DiPirro and Ms. Hubbard dissent as to Charge I and vote to sustain the charge.
Mr. Emery, Judge Konviser and Judge Ruderman did not participate.
Mr. Jacob was not present.
Dated: October 29, 2008
CONCURRING OPINION BY MR. BELLUCK
I write to explain my concurrence in the Commission’s vote not to sustain Charge I and to clarify my concurrence in sustaining Charge II.
The chilling effect on judges if the Commission were to sustain Charge I should be intolerable to anyone who believes in a healthy democratic society and a vibrant judiciary free to function without the threat of retaliation.
Judicial independence has been a cornerstone of our American democracy since its founding over 200 years ago. It was recognized by our founding fathers. The Declaration of Independence, in criticizing King George III for making “judges dependent upon his will alone for the tenure of their offices and the amount and payment of their salaries,” testifies to this fact. In 1789, Thomas Jefferson wrote to James Madison: “The judiciary... is a body which, if rendered independent and kept strictly to their own department, merits great confidence for their learning and integrity.” The Constitution protected judicial independence because the founders had firsthand experience being a persecuted minority in courts unfairly controlled by a ruling party. Indeed, the Constitutional safeguards of appointments for life, a difficult impeachment process and non-diminishment of salaries were specifically designed to protect the independence of the judiciary. Throughout our country’s history, our greatest legal scholars and jurists have been staunch defenders of this independence. “I have always thought, from my earliest youth till now that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary” (Excerpt from John Marshall, address to the Virginia State Convention of 1829-30, Proceedings and Debates of the Virginia State Convention of 1829-30 at 616 [1830]). In more than 200 years, only 13 attempts have been made to formally impeach federal judges, and only seven judges have been convicted and removed from office—none because Congress disagreed with a judge’s judicial philosophy or with a particular decision. Emerging democracies look to our system of an independent judiciary as a model.
Against this backdrop, a charge was brought against Judge Ambrecht for issuing a decision that allegedly was politically motivated.
The history of the United States is paved with judicial opinions that expressed unpopular political viewpoints or that had political facets and impact. E.g., Plessy v. Ferguson and Brown v. Board of Education. While the facts and issues in the underlying matter handled by respondent may not have great societal import, punishing the judge for the contents of his opinion most certainly would have. To be sure, a judicial opinion is not so sacrosanct that it can never be the basis for a misconduct finding, e.g., if it was demonstrably motivated by an improper purpose. This case could not be further from such a patently offensive scenario.
At its core, the Formal Written Complaint in this matter alleged that respondent issued a judicial opinion with the intent to influence a political election. After a lengthy hearing, it became clear that the argument for misconduct was based on (i) the contents of the opinion (critical of a public official), (ii) the timing of the opinion (issued six days before a primary election) and (iii) respondent’s frank acknowledgment that he was aware that the opinion might have a political impact. Moreover, it was written in response to an application to withdraw a pending motion. A finding of misconduct based on such slender facts would indeed be a grave threat to the independence of the judiciary. Therefore, as to Charge I of the Formal Written Complaint, I concur with the majority that the charge should not be sustained.
The facts underlying this matter are as follows.
From 1993 to 1997, a group of defendants plead guilty and paid restitution in People v. Alvarez, a case involving kickbacks to real estate managers. In 1996 Acting Supreme Court Justice Leslie Crocker Snyder appoints a special master to oversee the restitution fund. In 1997 certain records related to the restitution fund are sealed by an Appellate Division justice.
In early 2005, incumbent District Attorney Robert M. Morgenthau is challenged in a Democratic primary by former Judge Snyder.
In March 2005 the District Attorney begins to investigate the restitution fund. The District Attorney’s office is unable to locate the pertinent records in its own files and is told by a court clerk that the Alvarez file is sealed. The District Attorney’s office then applies ex parte to respondent, a former assistant district attorney in Morgenthau’s office, to unseal the Alvarez records. Respondent refuses to sign an ex parte order and requires the District Attorney to file an Order to Show Cause, on notice, to unseal these records.
In a telephone conference on July 14, the parties agree that ADA Dugan can review the Alvarez records at the special master’s law firm.
On July 21, ADA Dugan goes to the firm and spends several hours reviewing and copying records. Thereafter, Dugan advises the Court that, based on his review, he has determined that most of the documents covered by the unsealing request were not sealed, including Judge Snyder’s orders related to the special master’s compensation. The ADA states that only eleven requests for compensation appear to be sealed and, therefore, he is narrowing the unsealing request to those documents only. The attorney for the special master vigorously disputes the ADA’s representations and argues that the application is politically motivated.
On August 15, a newspaper article appears in the New York Post regarding Judge Snyder’s role in the Alvarez matter. The article contains specific details about eleven Snyder orders approving compensation to the special master.
On August 16, the special master’s lawyer asks respondent to take sworn statements regarding the leak of sealed information to the New York Post. Respondent, believing that he was being manipulated and that the court’s jurisdiction to rule on the unsealing application had been circumvented by whoever had provided the information to the Post, orders a hearing on the apparent breach of the sealing order.
On August 19, 2005, respondent holds a hearing at which the attorneys appear. ADA Dugan tells the Court that the Chief of the Investigations Division had asked him in early 2005 to review the file in Alvarez, a matter that had concluded some years earlier.
On August 31, 2005, respondent issues 26 written interrogatories to the Chief of the Investigations Division regarding the unsealing request in Alvarez and the documents Dugan had obtained from the special master’s law firm. Respondent directs a response by September 2, 2005.
On September 2, the District Attorney commences an Article 78 proceeding in the Appellate Division, First Department, challenging respondent’s authority to issue the written interrogatories. At an appearance before Justice James M. Catterson, an oral agreement is reached between the District Attorney and the Attorney General’s office, appearing on behalf of respondent, calling for respondent to withdraw the interrogatories and for the District Attorney to withdraw the Article 78 proceeding and the unsealing application. The results of this conference are communicated to respondent by telephone.
On September 6, 2005, the District Attorney writes to respondent withdrawing the application to unseal documents in Alvarez.
On September 7, 2005, respondent issues a six-page decision which grants the application to withdraw the unsealing request and criticizes the District Attorney for an “apparent misuse of a public office for inappropriate political purposes.”
On September 13, 2005, the primary election for the Democratic nomination for District Attorney is held.
The issue is whether the proof established that respondent issued a decision that was motivated by political considerations. As the record here reveals, such proof on balance was conspicuously absent.
There is no persuasive evidence in the record to disprove respondent’s claim that he acted consistently to protect the integrity of his court. It is clear that respondent felt he was being manipulated by the District Attorney’s office. It is undisputed that he believed that the District Attorney’s office had misused its office for political purposes, leaked sealed court records containing information detrimental to the District Attorney’s opponent in the primary election and, subsequently, interfered with the Court’s attempt to determine who at the office was responsible for these acts. It is also undisputed that respondent issued written interrogatories to the District Attorney’s office in an attempt to resolve unanswered questions about the source of the leaked material, that he had authority to inquire into the apparent leak of sealed material, and that he had authority to issue a decision on the application to withdraw the unsealing request. Respondent’s commentary in his six-page decision expresses his views regarding this sequence of events:
The Court, while lacking all the necessary facts to determine the source of the leaked information, is compelled to express its concern over the apparent misuse of a public office for inappropriate political purposes. Though ADAs Dugan and Dwyer consistently denied a political facet to the investigation, the Court finds such assertion totally incredible and belied by the People’s own actions. Moreover, the Court can only conclude that ADA Castleman’s refusal to answer the submitted interrogatories was intended to prevent the Court from completing the fact finding required for it to determine whether and by whom the sealing order had been violated.
The Court further takes issue with the People’s completely illogical position, proffered only after the Court had initiated an inquiry regarding the leak, that Mr. Hershmann’s compensation applications and Judge Snyder’s Orders were never under seal and were thus available to the New York Post and the public in general and the unsealing order which they sought was unnecessary. It is undisputed that the entire purpose of the Order to Show Cause was to determine which documents were encompassed by the sealing order. For the People to now make a unilateral determination that the subject Orders were not sealed is presumptuous and denigrating to the very Court which the People enlisted to make that determination. (Comm. Ex. 25)
Based on the evidence adduced at the hearing, the attempt to attribute respondent’s acts and the above-quoted decision to an improper motivation was no more than speculative and was properly rejected by the Commission.
Far from there being proof that respondent was politically motivated to issue his decision, the record is clear that he was a supporter of Mr. Morgenthau and, indeed, would have voted for him if he lived in Manhattan. For example, respondent testified at the hearing:
"I hold Mr. Morgenthau in high esteem. I worked for him for many, many years, he gave me great opportunities in my career." (Tr. 146)
"Q. [W]ould you compare your relationship with Leslie Crocker Snyder and
your relationship with Robert M. Morgenthau?
A. There is no comparison. I knew Leslie simply because she was a colleague and we had brief interactions at judicial functions. I looked upon Mr. Morgenthau as a father figure for many years. Having worked for him while in college, and I was always very grateful for the many opportunities he gave me to be exposed to the practice of law at such an early age ending college, which is what prompted me to pursue a career in law." (Tr. 236-37)
[After testifying that he votes in Nassau County, respondent was asked:]
“Q. If you had been able to vote the primary election in 2005 between Mr. Morgenthau and Justice Snyder, for whom would you have voted?
A. Robert Morgenthau.
Q. And why is that?
MR. FRIEDBERG: Move to strike. It’s speculative.
JUDGE SIMONS: Strike it out.
Q. When that election was going on, who did you hope would win that election?
A. Robert Morgenthau.
Q. And why is that?
A. I hold Robert Morgenthau in the highest esteem. He is someone that gave me not just one opportunity, but many opportunities through the course of my education and career to give public service and to learn the practice of law. And I admire and supported him throughout the years.
Q. Did you ever work on any of his campaigns?
A. I did.
Q. Do you recall how many of those campaigns you worked on?
A. Well, I only worked on the 1985 campaign. And I was a college student at the time, and I was on the non-legal staff. So it was permissible at that time to volunteer on your own time to work on Mr. Morgenthau's campaign.” (Tr. 813-14)
[Respondent states that subsequently the district attorney “implemented a revised rule that basically barred any assistant district attorney from working voluntarily or otherwise on his future campaigns.”]
"...Q. Did you ever contribute to Mr. Morgenthau’s campaigns?
A. Well, you were allowed to contribute financially, and I always did that, yes.
Q. Did that continue after you left the office but before you became a judge?
A. Correct. I contributed even while on the Governor’s staff." (Tr. 815-16)
Respondent’s law clerk was asked:
"Q. During the entire time that the Alvarez matter was pending before him, did Justice Ambrecht ever indicate to you what his personal views were regarding the merits of the candidacies of Judge Leslie Crocker Snyder on the one hand and Robert Morgenthau on the other in that primary race?
A. No.
Q. Have you ever heard to this day Justice Ambrecht express the view that he supported the candidacy of Leslie Crocker Snyder for the District Attorney in New York County?
A. Never.
Q. And during the entire time that the matter was pending before you, have you ever heard Justice Ambrecht express any intent whatsoever to assist Justice Snyder in her candidacy or quest to become District Attorney of New York County?
A. No. To the contrary. The gist of any conversation we ever had and not even about this election but about -- let me rephrase that. The conversations that I had with Judge Ambrecht would have led me to believe to the contrary, that he would have -- may have been a supporter of Robert Morgenthau. He appreciated several career opportunities that the District Attorney had given him, he had fond feelings for the office, and respected Mr. Morgenthau. And I never had any reason to believe otherwise, until this time." (Tr. 563-65)
No contrary evidence concerning respondent’s personal political views, or any supposed bias, was presented.
The dissent argues that respondent issued a decision in a matter that had already been concluded (Dissenting opinion, p. 3). Not so. During the oral argument on this matter, Commission counsel acknowledged that the September 6, 2005 letter from the District Attorney withdrawing the unsealing request was in fact an “application” to withdraw a motion (Oral argument, p. 19). Commission counsel also acknowledged that respondent, and, indeed, any judge, has the authority to issue a decision on an application to withdraw an unsealing request (Id. at 18-19).
The fact that the referee concluded that “Circumstances did not require a written decision” (Referee’s report, p. 3) does not speak to whether respondent had the right to issue such a decision. Nor did the fact that Justice Catterson had apparently brokered an agreement amongst the parties, and had commented that he wanted the matter to “go away,” preclude respondent from writing an opinion. Respondent was not subject to any order by the Appellate Division or any other legal bar that would preclude him from issuing a decision addressing the matters before him.
As to the argument that the timing of the decision (six days before the primary) is conclusive evidence of an improper purpose, a judge might equally be subject to criticism for delaying a decision which might be detrimental to a candidate until after an election. Whenever the opinion was issued, the timing would be perceived by some as politically motivated, regardless of the judge’s intent. In that regard, I cannot agree with the dissent’s view that since it was unnecessary for respondent to issue such a decision shortly before the election, it must be concluded that he did so for the purpose of influencing the election.
Nor is there merit to Commission counsel’s insistence that respondent admitted criticizing the District Attorney’s office “without facts to back it up.” While the opinion states that the court “lack[s] all the necessary facts to determine the source of the leaked information,” respondent has explained that he believed the facts before him pointed to the District Attorney’s office as the source of the leak, though he lacked adequate facts to accuse a particular individual. The very fact that a judge has been called upon to explain and justify statements in a judicial opinion, on these facts, graphically demonstrates the impropriety of this unprecedented intrusion into judicial independence.
While I strongly believe that investigation into these matters was unwarranted, it is important to underscore that this decision fulfills the Commission’s mandate to promote public confidence in the integrity of the judiciary, which includes not only holding judges accountable for misconduct but, equally important, dismissing meritless complaints.
For these reasons, I concur that Charge I should not be sustained.
With respect to Charge II, I concur in the sanction with some reservation. The majority determination lays out the facts regarding the appearances of Mr. Shechtman before respondent in two cases after respondent had retained Mr. Shechtman to represent him with respect to Charge I.
It is indeed troubling that respondent would allow his own attorney to appear before him. It is not a credible defense to this charge that respondent was not aware of the specific rules or Advisory Opinions prohibiting such conduct. It simply does not pass the smell test for any judge to allow his or her own attorney to appear on a pending matter without, at the very least, making full disclosure of the relationship.
My reservations in sustaining Charge II are as follows.
In my view, the fact that Charge I was even investigated by the Commission was an encroachment into the independence of the judiciary, and since it is clear that Charge II would never have arisen had it not been for the investigation into Charge I, I am troubled by upholding any charges against respondent. While it is often the case that the cover-up is worse than the crime, in this case, the “crime” should never have been charged.
Secondly, I am troubled by the apparent conduct of Mr. Shechtman. While Mr. Shechtman was not subject to the jurisdiction of the Commission and, therefore, had no opportunity to defend his actions, the appearance of what occurred here is not good. Mr. Shechtman, well known as an ethics advisor and indeed a former chair of the State Ethics Commission, was hired by respondent for the express purpose of representing him with respect to Charge I. Notwithstanding this, it appears that Mr. Shechtman placed respondent in the very situation which gave rise to further charges of wrongdoing. Moreover, Mr. Shechtman profited handsomely from this. Indeed, he earned over $40,000 on the two cases in which he appeared before respondent while serving as respondent’s attorney. While it does not alleviate the burden on respondent to avoid any appearance of impropriety, in my view Mr. Shechtman bears a considerable portion of the blame.
Dated: October 29, 2008
OPINION BY JUDGE KLONICK, DISSENTING AS TO CHARGE I AND CONCURRING AS TO SANCTION
As to Charge I of the Formal Written Complaint, I respectfully dissent.
Specifically, the Complaint alleged that the Respondent, acting or appearing to act for politically motivated reasons, publicly accused the New York County District Attorney’s Office of abusing its authority in an effort to embarrass the candidate then running against the incumbent DA in the 2005 Democratic primary. The Referee concluded, following an extensive hearing, that this charge had been sustained and that Respondent’s intent was to affect the election. I agree.
A brief recitation of the facts is necessary to put the Respondent’s actions into context.
In 2005, incumbent DA Robert M. Morgenthau was challenged in the Democratic primary by former Judge Leslie Crocker Snyder. With respect to a matter which was pending before him involving a fiduciary appointment Judge Snyder had made to a firm she later joined, the Respondent was obviously disturbed by an alleged leak of information to the media. The resulting media articles portrayed former Judge Snyder in a negative light. The Respondent, in an effort to find the source of this breach of confidentiality, issued interrogatories, on the Court’s own motion, directed to the District Attorney’s Office.
The District Attorney’s Office opposed answering these interrogatories and initiated an Article 78 proceeding before the Appellate Division, First Department, challenging the Respondent’s authority to issue such interrogatories. An appearance on Friday, September 2, 2005 before Appellate Division Justice James M. Catterson resulted in a settlement of the matter. The District Attorney’s Office agreed to withdraw the Article 78 proceeding immediately and to also withdraw the application to unseal certain documents which was pending before the Respondent. In return, the Attorney General’s Office, appearing on behalf of the Respondent, agreed to withdraw the interrogatories. Judge Catterson made it clear to the attorneys the matter was over and that he did not want to see any more publicity about it. The results of the proceeding at the Appellate Division were communicated that day by the Assistant Attorney General to the Respondent’s Law Clerk, as well as directly to the Respondent by telephone. The Respondent’s Law Clerk even remarked to the Assistant Attorney General after being told of the resolution: “That’s fine, I don’t have to write an opinion over the weekend” (Referee’s Report, Appendix A ¶48; Tr. 689).
The District Attorney’s Office then withdrew its application before the Respondent on September 6, 2005. The next day, September 7, 2005 and six days before the primary election, the Respondent issued a six-page Decision wherein he severely criticized the incumbent District Attorney and his office. The Decision, inter alia, criticized the District Attorney’s Office for its “apparent misuse of a public office for inappropriate political purposes” (Referee’s Report, Appendix A ¶54; Ex. 25, 50).
Based upon testimony and evidence given at the hearing in this matter before Referee Simons, it appears that many of the conclusions in the Respondent’s Decision issued on September 7, 2005 are based upon speculation and innuendos, without any basis in fact.
The Referee concluded that: “The circumstances did not require a written decision, let alone one which, based solely on Respondent’s speculations, castigated a public officer for abuse of office, or at a minimum, improper conduct. The error was compounded when Respondent knowing the decision would become public issued it a few days before the District Attorney faced an opponent in a primary election” (Referee’s Report, p. 3).
It is clear that the matter pending before the Respondent had been concluded by a settlement between the parties before the issuance of the Decision. Information concerning the settlement had been communicated directly to the Judge and his Law Clerk several days before he issued his Decision, a decision which was highly critical of an elected official on the eve of a contested primary election. Since there was no necessity for such a written Decision, one is left with but one conclusion: The Respondent, by his after-the-fact decision, was attempting to enter the political arena and influence the election.
A judge is required to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” (Rules Governing Judicial Conduct, §100.2[A]). In fact, “[t]he ability to be impartial is an indispensable requirement for a judicial officer.” Matter of Sardino, 58 NY2d 286, 290 (1983).
The Respondent certainly had the authority to inquire into and discipline alleged attorney misconduct after any settlement. He could have held a hearing to determine the source of the alleged leaks of the purportedly sealed documents and then discipline any of the parties appropriately. He chose, instead, to issue a decision in a matter which had already been concluded.
I can only conclude, as the Referee did, that the Respondent’s actions were politically motivated and a blatant attempt to influence an election. I vote to sustain Charge I and that the appropriate sanction is censure.
Dated: October 29, 2008
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