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The judge overseeing the legal malpractice trial involving Weil, Gotshal & Manges and two of its partners is considering letting the jury hear about another suit against the law firm filed by the pop singer Michael Bolton. The firm and the two partners, Helene Jaffe and Robert Sugarman, are on trial over allegations they committed malpractice in representing a New Jersey mall boutique in a trade dispute with Italian fashion house Fendi. The owners of Fashion Boutique of Short Hills claim the firm was conflicted because it began representing Prada, a part owner of Fendi, months before the trade dispute went to trial in federal court. Manhattan Supreme Court Justice Richard Lowe (See Profile) had previously ruled that any mention of other claims against the firm would be excluded on the grounds that they were irrelevant to the present proceeding. But in court on Friday, the judge said he thought testimony Wednesday by Mr. Sugarman about his past celebrity representations might “open the door” to questions by opposing counsel about a celebrity who sued the partner and the firm. Justice Lowe said Mr. Sugarman and his lawyer had done nothing wrong in touting his past clients, which included singer Barbra Streisand and director Jonathan Demme. “I would do that if I had a client roster like that of Mr. Sugarman,” the judge said, noting that such testimony would likely impress the jury and build up Mr. Sugarman’s image as a skilled and capable lawyer. But the judge said the other side also had “the right to diminish” Mr. Sugarman’s resume. “What’s good for the goose is good for the gander,” said Justice Lowe. Mr. Bolton sued Weil Gotshal and Mr. Sugarman for breach of fiduciary duty in December 2003, claiming they were conflicted when they represented him in a copyright dispute over his 1991 hit, “Love Is a Wonderful Thing,” which was found to have infringed the copyright of 1964 Isley Brothers song of the same name. Mr. Sugarman also represented the music publisher and record label in the dispute, and Mr. Bolton claimed the lawyer conspired with the other parties to push the matter to trial rather than settle for a lesser amount in order take advantage of indemnification agreements the singer had signed with them. In court Friday, Weil Gotshal’s lawyer, Michael Feldberg of Allen & Overy, who also represented the firm against Mr. Bolton, said the singer’s suit had been settled under confidential terms. He said that suit would be of “no probative value” in the Fashion Boutique trial. Justice Lowe initially announced Friday he had decided to let the boutique owner’s lawyer, Kenneth F. McCallion of McCallion & Associates, ask Mr. Sugarman about the Bolton suit. The judge said he would limit the questions to merely the fact of the suit, excluding any mention of issues in the case. He also said he would instruct the jury on the questioning. Mr. Feldberg asked that he be given a few day’s to find case law on the issue and Justice Lowe withdrew his decision after the lawyer said he felt certain the issue may have been addressed in the medical malpractice context. The lawyer noted that Mr. Sugarman would be present for the rest of trial should he need to be recalled to the stand. The judge said he would reserve his decision, noting he wanted to be careful on what he sensed might be a “reversible” issue. Along with Ms. Streisand and Mr. Demme, Mr. Sugarman had also told the jury Wednesday about his past representations of actress Margot Kidder, the CBS show “60 Minutes” and the National Geographic Society. The witness briefly ignored a question about his family to talk about his work for the Rev. Billy Graham. The judge then urged him to move on. Underlying case Mr. Sugarman stepped down from the stand Friday. Much of Mr. McCallion’s cross-examination had focused on the Weil Gotshal partner’s treatment of a witness in the underlying trade case. Annette and Randi Fischer, the owners of Fashion Boutique, claim that the witness, Caroline Clarke, Fendi’s former executive director of operations in the United States, could have testified that Fendi was engaged in a campaign of disparagement of the Short Hills boutique, which sold Fendi goods under a franchise agreement. Motivated to stamp out a rival to its company-owned store in Manhattan, the Fischers claim, Fendi instructed employees to tell customers the New Jersey store sold inferior goods. Ms. Clarke had denied the Fischer’s allegations in a 1994 deposition but came forward again in 1999, after she had left Fendi, with a changed story. Mr. Sugarman and Ms. Jaffe, who testified earlier in the week, both said Ms. Clarke’s testimony still did not support the contention that Fendi’s top management instituted a company-wide policy of disparagement. The Fischers claim Ms. Clarke’s testimony was misused and she also was subject to a campaign of harassment that Mr. Sugarman, the chief trial lawyer, allegedly did nothing to stop. The judge overseeing the trade dispute found the Fischers had presented no evidence of a Fendi policy of disparagement of Fashion Boutique’s merchandise and dismissed claims that would have permitted punitive damages. The Fischers were ultimately awarded a disappointing $110,000. They had earlier rejected a $1.4 million settlement offer. Expert witnesses Both sides presented expert witnesses on Friday. The Fischers put Hal R. Lieberman, the former chief counsel for the disciplinary committee of the First Judicial Department and now a partner at Hinshaw & Culbertson, on the stand to testify on ethical rules and professional responsibility. Describing the facts of the case in hypothetical form and asking Mr. Lieberman to make a number of assumptions, Mr. McCallion asked his witness for his opinion of Weil Gotshal’s conduct. Mr. Lieberman stated that his opinion was that the hypothetical firm had broken a number of ethical rules. He noted the failure of the firm to detect the conflict when Weil Gotshal first began representing Prada in October 1999; he said the conflict should have been found and disclosed to the Fischers. He also described the ethical hazard a firm could face when caught between a new but large and wealthy client and a smaller existing client. Both Mr. Sugarman and Ms. Jaffe have testified that they did not become aware of their firm’s representation of Prada until months after the fact, when they were on the eve of trial in the Fendi case. They told the Fischers about Prada on the second day of jury deliberations. Weil Gotshal brought in former Southern District Judge John S. Martin as an expert. Mr. Martin, now of counsel at Debevoise & Plimpton, focused his testimony on whether he felt Weil Gotshal’s conduct in the Fendi case conformed with “the standard of ordinary care for lawyers.” The former judge took particular aim at the Fischer’s contention that Weil Gotshal could have made better use of Ms. Clarke’s testimony. Mr. Martin said it would not have been prudent for Mr. Sugarman to use Ms. Clarke’s testimony as a basis to try to reinstate claims in the trade case. He said any witness who changed her story had credibility problems that a lawyer needed to use judgment in dealing with. He said it seemed to him that Ms. Clarke was a “loose cannon” who had committed perjury in the past. Leaning heavily on her testimony “could be a mistake,” he said. The expected presence of the former federal judge in the courtroom had caused a light-hearted moment earlier in the day when Justice Lowe reminded Mr. Feldberg that he could not address Mr. Martin as a judge. “You’re the only the judge in this courtroom,” the lawyer instantly replied. Anthony Lin can be reached at [email protected]

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