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Son's Law Firm Job Does Not Require Recusal, Judge Determines
New York Law Journal
November 30, 2007
A New York judge has declined to recuse himself from a case in which evidence spoliation allegations have been made against the law firm where his son works as an associate.
The recusal motion against Manhattan Supreme Court Justice Herman Cahn arose in a compensation dispute between two former hedge fund partners, in which the defendant is represented by Greenberg Traurig partner Leslie D. Corwin. The plaintiff has accused Corwin of helping his client cover up the destruction of a key document in the case.
The judge's son Samuel, a 2005 graduate of New York University School of Law, joined Greenberg Traurig as a corporate associate last year. But Cahn ruled in a Nov. 19 decision that this family connection to the firm was insufficient grounds for him to recuse himself. The judge said such a step would be necessary only if his son would be "substantially affected" by the case.
"While young associates are a vital part of the structure of large firms, they do not normally, at this point in their careers, have a substantial stake in the cases and clients that the law firms represent," he said in Melcher v. Apollo Medical Fund.
Though the judge noted it was reasonable to assume that junior associates cared about their firm's reputation, he said that the instant case did "not rise to the level of affecting Greenberg Traurig on such a grand scale that it would have any significant impact on its associates."
The judge also noted that he had overseen the case for four years and had promptly informed the parties at the time that his son had accepted an offer to join Greenberg Traurig. He pointed out that both parties agreed then that he should continue with the case.
Plaintiff James Melcher had argued in his recusal motion that the firm's alleged misconduct had not yet come to light at the time of the judge's disclosure. He also noted that the judge had recently recused himself in another case in which Corwin and Greenberg Traurig had appeared as counsel.
But the judge said in his decision that the facts of that case were different and that recusal was a fact-specific determination.
In a separate decision also issued Nov. 19, the judge denied Melcher's motion to disqualify Greenberg Traurig as counsel for the defendant, Brandon Fradd.
The alleged misconduct by Greenberg Traurig involves a document that is central to the case. Melcher's December 2003 suit claims he was not paid an equal share of the hedge fund's net profits, a share he claims he was entitled to under the operating agreement adopted at the fund's creation in 1998.
But Fradd claims he and Melcher agreed to amend the equal share arrangement soon thereafter, in recognition of the fact that Melcher was not contributing an equal amount of work to the fund. Fradd claims this amendment provided for him to receive all of the profits from assets he brought into the fund as well as 50 percent of any profits from any assets brought in by Melcher.
The case has been complicated by the fact that the document memorializing the alleged amendment was badly burned in January 2004. Fradd claims the burning occurred accidentally while he made tea in his Manhattan apartment. But Melcher, who denies there ever was an amendment, claims the burning was a deliberate act intended to prevent the document from being found to be a fabrication.
Melcher claims Corwin and Fradd colluded to hide the fact that the document had not been burned until after a motion to dismiss was argued. Corwin allegedly claimed the document was safely in his custody, without disclosing its damaged state. Melcher claims the burning prevented the document from being forensically dated to determine whether it was from 1998 or drafted later.
The plaintiff also has claimed that Corwin and Fradd deceived him about the availability to testify of the retired lawyer who allegedly drafted the amendment.
Melcher has filed a separate lawsuit against Greenberg Traurig and Corwin, seeking $10 million in damages for their alleged fraud.
But Fradd and Greenberg Traurig have claimed that Melcher's allegations concerning the document are frivolous and intended to harass.
In denying Melcher's motion to disqualify Greenberg Traurig, Justice Cahn rejected the plaintiff's argument that he would need to call Corwin to testify about Fradd's actions. The judge said Melcher had other means of attacking the defendant's credibility and disqualification would be too a drastic remedy.
Corwin said Wednesday he agreed with the decision and said the issue had been a "distraction" in the case.
Melcher's lawyer, Jeffrey A. Jannuzzo, declined to comment.
