Legal Malpractice

Why Weren't They Thinking About Legal Malpractice?

By (Andrew Lavoott Bluestone)

Judges retire or don't stand for re-election, and then look for a new job.  That's expected and no one is surprised when they surface as a partner in biglaw, or in a prestigious local firm.  This story borders on the extreme.Charles Toutant of the New Jersey Law Journal reports:

"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.

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
"''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.""

Full post as published by New York Attorney Malpractice Blog on November 14, 2008 (boomark / email).