Friday, February 24, 2012
Firm Disqualified After Hiring Ex-Judge Who Had Heard Client's Case
New York Law Journal
A Brooklyn appellate court has disqualified a Long Island law firm from handling a woman's divorce after the judge presiding over the case retired and joined the firm.
In Manditch v. Manditch, 2011-04091, a unanimous panel of the Appellate Division, Second Department, rejected arguments that the former judge had been effectively insulated from the case. It held in a brief, unsigned Feb. 7 decision that a lower court judge had "improvidently exercised its discretion" by declining the husband's motion to disqualify his wife's firm.
Now-retired Suffolk County Supreme Court Justice Donald R. Blydenburgh had been presiding over the divorce action between Douglas C. Manditch and his wife, Devon, since its 2007 inception when he filed his retirement papers on Aug. 27, 2010, effective Sept. 30.
Following a Sept. 19, 2010, report in Newsday of the judge's imminent retirement from the bench, Ms. Manditch's attorney, Philip Castrovinci of Castrovinci & Mady in Smithtown, said in court papers that he approached the judge on Sept. 21 about a job.
On Oct. 1, 2010, the judge became a non-equity partner in what became known as Castrovinci, Blydenburgh & Mady.
Attorneys for the husband— the chairman and CEO of Empire National Bank in the still-pending divorce action—unsuccessfully moved for disqualification of the firm before Acting Suffolk County Justice James F. Quinn (See Profile).
On appeal, Mr. Manditch argued in his brief that the "integrity of the judicial process has been eviscerated" by Justice Quinn's refusal to disqualify the firm, later saying "the taint of impropriety is simply overwhelming."
Mr. Manditch added that the Castrovinci firm had not followed requirements to notify its opponents and the court of its intentions to stay on the case after Mr. Blydenburgh joined the firm.
Specifically, Mr. Manditch cited Rule 1.12 of the Rules of Professional Conduct, which states that when firms become affiliated with someone who has acted "in a judicial capacity" on a matter, the firm cannot "undertake or continue representation in such a matter unless…the firm acts promptly and reasonably to…give written notice to the parties and any appropriate tribunal to enable it to ascertain compliance with the provisions of this Rule."
Mr. Manditch said purported safeguards to ensure the former judge did not become involved in the case were "at best, vague and at worst, illusory."
But the Castrovinci firm stressed in its own court papers that Mr. Blydenburgh was "totally insulated" from the case, having been excluded from all conversations, never meeting Ms. Manditch and earning a salary instead of fees generated by this case or other cases where he acted as a judge.
Noting Mr. Manditch's large income, the Castrovinci firm called the appeal "simply another weapon in [Mr. Manditch's] arsenal, calculated to financially exhaust [Ms. Manditch] until she has no choice but to capitulate."
The Castrovinci firm responded in its brief to the issue of notice by arguing there was no case law to buttress the proposition that "such a formality was lauded over substance."
Disqualification of the firm was "punitive, harsh, unnecessary and highly prejudicial," the Castrovinci firm argued. It claimed that with Ms. Manditch's "limited financial means," she could not find new representation, amounting to a "death knell" for her case.
But the panel was not swayed, writing that "under the facts of this case, including that the law firm representing the defendant did not comply with the notice requirements of the Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.12(d), the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion."
The couple was married in June 2003, the third marriage for Mr. Manditch and the second for Ms. Manditch.
While presiding over the case, Mr. Blydenburgh in April 2010 granted partial summary judgment to Mr. Manditch, ruling that, under a pre-nuptial agreement, it was the intent of the parties that all past, present and future retirement and stock option benefits were separate property.
Following a request for clarification from Ms. Manditch, the judge issued a June 2010 amended order, that according to Mr. Manditch "effectively reversed" the earlier decision. On Sept. 3, 2010, the judge refused to vacate his June 2010 amended order.
Mr. Manditch appealed the refusal to vacate the order. The Second Department affirmed Judge Blydenburgh in a November 2011 ruling.
In the current case, Mr. Manditch argued, "It strains credulity to believe that after the retirement papers were filed on August 27, 2010, the former Judge and Mr. Castrovinci were not discussing, negotiating and planning for him to join the firm" while the judge was writing the Sept. 3 order.
The Castrovinci firm said the September decision only reiterated the June decision—made about four months before Mr. Blydenburgh joined the firm.
Mr. Blydenburgh is no longer with the firm, which is now named Castrovinci & Mady, according to a receptionist at the firm.
Mr. Blydenburgh, 60, served as a Suffolk County Supreme Court justice from January 1997 until his Sept. 2010 retirement. He could not be reached for comment.
Glenn S. Koopersmith of Garden City represented Mr. Manditch on appeal. He said his client was "uncomfortable" with the firm's attempts to stay on the case after hiring the judge.
"Notwithstanding their representation they were not involving him in the representation, that did not make my client feel comfortable, he felt the appearance of impropriety was overwhelming," Mr. Koopersmith said.
Justices Peter B. Skelos (See Profile), Ruth C. Balkin (See Profile), Sheri S. Roman (See Profile) and Sandra L. Sgroi (See Profile) joined the decision.
The case was argued on Jan. 17, though the Castrovinci firm did not appear for oral argument, Mr. Koopersmith said.
Mr. Castrovinci did not respond to a request for comment. Ruth Sovronsky of the Castrovinci firm appeared on the brief.
@|Andrew Keshner can be contacted at firstname.lastname@example.org.