In a highly unusual move, a State Supreme Court judge in Manhattan has requested that the New York Law Journal not publish a decision she had already put on the public record.
The Law Journal went ahead and printed Justice Karla Moskowitz’s ruling, anyway. The sober broadsheet further flouted Justice Moskowitz’s wishes by also runningonSept.15afront-page news story, above the fold, about her written opinion and the piss-and-vinegar fight among lawyers that prompted it. The editors helpfully included the case’s index numbers.
The episode is a rare departure for the controversy-shy trade newspaper-and injects a rare chill into its traditionally cozy relationship with judges, who are each week fawningly profiled in its pages.
Every day, the Law Journal selects one judge’s ruling as the “Decision of the Day” and tags the handiwork of a few others as a “Decision of Interest.” Naturally, judges like to messenger copies of their latest efforts to the editors for their consideration.
Justice Moskowitz went in the other direction after ruling in the case of Togut v. Thurm & Heller, a money dispute between two attorneys and the firm they left. As usual, she sent her decision to the back-office clerks at 60 Centre Street so it could be entered into the public record. But she also tacked to the top an unprecedented directive clearly intended for the Law Journal : “Not for publication because the privacy interests of the litigants outweighs public interest.”
Judges just don’t ask newspapers to suppress rulings on the public record. “I’ve never heard of anybody doing that,” said the administrative judge of the Supreme Court’s civil division in Manhattan, Stephen Crane. Not having been told the name of the judge, he added, “I can’t conceive of what would impel a judge to ask that a decision not be published. You can seal it if there’s a problem.”
“We’ve never seen this before,” said a concerned member of the Law Journal ‘s staff. For good reason, said one of Justice Moskowitz’s fellow judges. “You don’t write a note to the media saying, ‘Don’t publicize.’ That’s the surest way to publicize a case,” scoffed the judge.
Justice Moskowitz declined comment about why she just didn’t go ahead and seal the case. That would have merely required a brief memorandum. Or she could have ordered the court file “impounded” and stuffed in a safe or written the opinion using only the parties’ initials.
David Bookstaver, a spokesman for the state’s Office of Court Administration, said that Justice Moskowitz wasn’t claiming any special right for this decision that newspaper editors were obliged to respect. “It was an informal request, for them to consider. She did it because she thought the privacy interests outweighed the public interest, and made a respectful request that they not further publicize it,” he said.
Commonly, judges seal the case only after the parties ask. (They once did so with notorious frequency.) In this case, the litigants made no request, and the judge acted on her own authority. “Karla has a healthy distrust of the media,” said another Centre Street judge.
Justice Moskowitz has been on the bench since 1982 and is married to a practicing lawyer, Marvin Moskowitz. The case she wanted buried sprung from the 1994 collapse of Bower & Gardner, once one of the city’s 30 largest law firms. The firm died carrying a $5.3 million debt. Two attorneys, Jeffrey Wolk and Kevin Porter, refused to honor their designated part of the debt, claiming poverty. (They justified nonpayment, claiming they had been cut out of the talks when the debt load was divvied up.) Despite the attorneys’ claims of indigency, the firm’s bankruptcy trustee, lawyer Albert Togut, garnished their share of the profits at their current firm, Thurm & Heller. Mr. Wolk and Mr. Porter claimed that Mr. Togut purposely tried to embarrass them in front of their partners.
Charles Wertman, attorney for the two lawyers, contended that Justice Moskowitz was concerned that the lawyers’ professional reputation could be unfairly damaged if the decision was published in a paper read by every lawyer in town-that the unfavorable ruling would make his clients look like skunks for not coughing up the $75,000 they each owed.
That’s the impression given by the Law Journal , though its colorless news story refrained from splashing the attorneys’ misdeeds front and center. The headline, “Partnership Draws Are Subject to Garnishment,” made it sound as if Justice Moskowitz had thrown a thunderbolt at the case law. Not so, said one expert on legal disputes, who requested anonymity because of closeness to the involved parties: “There’s no question that you can garnish partnership shares. There’s been a whole host of cases that make that clear.” Editor in chief Ruth Hochberger declined to comment.
Why He Studied Law
U.S. District Court Judge Jed Rakoff, who sits half a block away from his state court colleague Justice Moskowitz, seemingly is less concerned about the reputations of the lawyers involved in litigation before him. Or at least less concerned about the reputation of one whose case he ruled on recently, a Park Avenue business lawyer named Bruce Schaeffer.
According to an opinion by Judge Rakoff published in July, Mr. Schaeffer is one of those people who flies off the handle as soon as he doesn’t get his way, complaining and insisting he knows what he’s talking about and repeatedly invoking his rights-in short, acting like a lawyer.
Mr. Schaeffer, in turn, claimed that Judge Rakoff has arrogantly decided to slap him around.
After boarding Trans-State Airlines Flight 7669, New York to Richmond, in April 1998, Mr. Schaeffer was told he couldn’t bring on board two pieces of luggage. Judge Rakoff’s account of what happened next: “He vigorously protested, asserting his alleged knowledge of airline regulations and procedures. When, having reluctantly relinquished one of the bags, he failed to receive a promised baggage receipt, he so vociferously pursued his demand for the receipt that he was finally asked to leave the flight.” He refused, the police were called, and he was escorted from the plane. In Judge Rakoff’s words, “He then returned home and immediately set about drafting the original complaint in this case, alleging breach of contract, battery, false imprisonment, defamation and tortious interference with prospective economic advantage, and demanding punitive and other damages in excess of $25 million.”
Mr. Schaeffer’s view of it is that the airline repeatedly lied to him and “said I was a danger to the safe operation of an aircraft, which is a Federal felony.” He was so offended-he had missed the chance to give a seminar at a law school where potential clients were waiting-that he waited a year to take the case to trial in May. His lawyer described the airplane confrontation as “a classic New York moment,” one man merely standing up for common sense. Nonetheless, Judge Rakoff dismissed several of his claims, and Mr. Schaeffer settled for the $396 refund he had received from the airline, as required by Federal aviation law.
“A legal education is a wonderful thing,” wrote the judge, who graduated from Harvard Law School in 1969.
Mr. Schaeffer, who graduated from Brooklyn Law School, agreed that some people let their legal educations go to their head. “The judge has a streak of arrogance comparable to none and thinks it’s just a big joke,” he told The Observer .
Covington Keeps a Secret
For several weeks in July and August, Scott F. Smith, a high-flying mergers-and-acquisitions lawyer, closed the door to his office on Avenue of the Americas, flipped open his Sprint PCS cell phone and double-clicked on his private e-mail account-which he eyeballed exclusively on his personal Dell Inspiron 3000 laptop. Mr. Smith, a rainmaker at the corporate law boutique of Howard, Smith & Levin, wasn’t touching his office phone or his office computer because he was deep in merger negotiations with the leaders of the heavyweight Washington, D.C., firm Covington & Burling, and he wanted no one, but no one, to know.
Ever since London’s Clifford Chance made its bid for global dominance in July by absorbing the old-line firm of Rogers & Wells, the law business’ big players have darted like bats for the darkness.
But there’s barely even shade to be found now. Rumors are rapidly proliferating, which is why Robert Profusek, a mergers-and-acquisition partner at Jones, Day, Reavis & Pogue, a 1,100-lawyer firm, was impressed by Mr. Smith’s stealth in cutting a deal on Sept. 21 with the Covington team. “They did a very good job in keeping that quiet. We’ve got our ear pretty close to the ground on all this stuff, and while we knew they were thumping around here, that didn’t leak out until right at the end,” said Mr. Profusek.
How effective were Mr. Smith’s cell phone maneuvers? News of the Covington-Howard Smith merger didn’t surface publicly-on the Washington edition of Greedy-associates.com, a lawyers’ gossip site-until two days after the deal was sealed, despite the fact that more than 300 lawyers and a few dozen staff members had known about the Covington talks for three weeks.
Covington partner Andrew Friedman confessed that Mr. Smith was far more on the ball than his band of savvy Beltway operators. “The New York lawyers were much more clandestine than we were,” said Mr. Friedman. “I got the impression that people in New York are more attentive to the way that people try to be clandestine than we do in D.C.”
Mr. Smith’s clandestine tactics included some low-key dining. For the face-to-face part of the negotiation, 12 D.C. lawyers sat down with Mr. Smith and company at the modest La Pizza Fresca on East 20th Street on a Saturday night. The sacrifice wasn’t that great. The restaurant did have tablecloths.