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A federal judge on Long Island has banned from his courtroom for life a defense lawyer who claimed the judge improperly communicated with a co-defendant’s lawyer. Eastern District Judge Leonard D. Wexler said the “lies” contained in an affidavit submitted by attorney Joseph J. Fleischman made him so furious that he could not proceed with an ongoing trial in which Fleischman represented the main defendant. “I think the half-truths and the lies by Mr. Fleischman have messed this up,” Wexler said, according to a transcript of a March 1 hearing. “And therefore I declare a mistrial.” The judge barred Fleischman from ever again practicing before him and he also barred Fleischman’s law firm, Bridgewater, N.J.’s Norris McLaughlin & Marcus, so long as Fleischman remained a partner at the firm. Fleischman is representing DRS Technologies Inc., a Parsippany, N.J.-based maker of defense electronics, in a suit brought in October 2001 by an Alabama-based competitor, the Miltope Corp., and Miltope’s Hauppauge, N.Y.-based subsidiary, IV Phoenix Group Inc. The plaintiffs claimed DRS and another group of defendants, engineers formerly employed by IV Phoenix who went to work for DRS, misappropriated trade secrets, infringed patents, breached confidentiality agreements and interfered with business relationships, among other claims. Trial in the matter began in February. The lawyer for the engineers, William Heller of Newarks’ McCarter & English, met with the judge Feb. 25 to discuss a possible settlement dismissing the engineers from the case. It was this discussion Fleischman apparently declared an improper ex parte communication. According to the transcript, the judge defended his discussion and pointed out that Heller and Fleischman were both paid by DRS and had appeared to behave as co-counsel. The judge noted that he had also spoken to DRS’s in-house lawyer in a similar context. Heller said he had told Fleischman about his discussion with the judge. The plaintiff, represented by Brian Lysaght of DLA Piper Rudnick Gray Cary, had also consented to the discussions. Fleischman had requested a mistrial on several occasions and Lysaght, according to the hearing transcript, suggested that the defense counsel had used his declaration to goad the judge into declaring a mistrial. “And now by this ploy to just infuriate you by putting in misstatement after misstatement after misstatement, he’s finally going to get what he wants,” Lysaght said at the hearing. “And it would go against every notion of justice if that were to occur.” Fleischman, who declined to comment, said at the hearing that he had not behaved improperly in any way. The judge disagreed and asked Fleischman: “[W]hy didn’t you put in that [Mr. Heller] spoke to you about what he came in to see me about? … Why didn’t you put that in so someone who does read this will know what the truth is? It was a half-truth, which are lies.” Wexler said he did not want to give Fleischman an advantage in the litigation but said he felt he had no choice but to declare a mistrial under the circumstances. The judge apologized to the plaintiff before addressing Fleischman. “You got what you wanted,” the judge said. “But let the record indicate you are barred for life. And so is your firm.”

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