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After ordering a litigant in his court to jail on contempt charges, Palm Beach Circuit Judge Jonathan D. Gerber has recused himself from the case. The reason: The side he sanctioned has hired a new law firm — one that employs the judge’s wife. “This doesn’t happen very often,” said Palm Beach Circuit Court Chief Judge Kathleen Kroll. “It’s a judgment call. If a judge feels there’s even the hint of an appearance of conflict, that judge then has an obligation to exercise proper discretion.” Frequent or not, the retention of a firm that employs a judge’s spouse raises the ethical question of whether a jurist should step down in the face of what could be construed as a deliberate attempt to force him off the case. Judge Gerber refused to discuss the matter with a reporter. But legal experts say that litigation is a tough game where recusal efforts are part of the process. Stetson College of Law professor Charlie Rose, an expert in both litigation and judicial ethics, says litigant efforts to create conflicts to remove judges is “an accepted practice as long as it doesn’t happen in excess.” “I’ve seen that before,” Rose said. “It’s not common, but it’s seen as a possible way to remove an impediment. How are you going to prove that? It’s like a John Grisham novel.” The case in question has dragged through the courts for nearly a decade. In March 1996, Amy Habie of Miami bought the assets of Scott Lewis Gardening and Trimming for $300,000 in cash and a $500,000 note. Scott Lewis and his wife, Carol, had operated the firm for many years and held a number of lucrative contracts with estates in the town of Palm Beach, Fla. Habie incorporated the firm in Delaware as Nical of Palm Beach, although she was permitted by the purchase agreement to operate the firm under the name Scott Lewis Gardening and Trimming while Lewis served as a consultant to Nical. Scott Lewis also continued to operate his own gardening business under that name, although with a noncompete agreement in the town of Palm Beach. Several months later, Habie and Lewis had a falling out, and Lewis refused to renew his contract as her consultant. Habie stopped payment on the note. Lewis resumed business in Palm Beach, and Habie sued for breach of contract in October 1996. In 1998, the Lewises reached a settlement with Habie and Nical. Under the deal, each landscaping firm was free to compete for new clients, but their existing clients could not be solicited by the other. Habie also agreed not to use Lewis’ name in doing business.Later, Lewis alleged that Habie had continued to use his name, continued to contact his clients and had interfered with the couple’s business in other ways. The result was a prolonged court battle in which a total of six judges have recused themselves at the request of one side or the other, or as the result of a judgment call such as the one recently made by Gerber. Judicial recusals are regulated both by Florida law and the American Bar Association’s Model Code of Judicial Conduct, which is merely a guide unless its provisions are adopted by a state legislature. The law and the code are based on the premise that public trust in judges is vital to the justice system. A judge is required to recuse in the event of the appearance of impropriety even if no actual impropriety exists. For the past five years, Lewis has represented himself in the suit, with advice from Jack Scarola, a partner at Searcy Denney Scarola Bernhardt & Shiply of West Palm Beach. In April, Gerber disqualified Habie’s lead lawyer, nationally prominent litigator David Boies of New York. His law firm, Boies, Schiller & Flexner, is headquartered in Armonk, N.Y., employs 200 lawyers and operates nine offices around the country, including four in Florida. Judge Gerber ruled that because of financial ties between Boies and Habie — she serves as the chief financial officer of Boies’ law firm — Boies and his firm were too conflicted under Florida Bar rules to continue representing Habie and her company, of which Boies is part owner through a trust. Gerber also found a Habie associate, Patrick Bilton, guilty of contempt in May and ordered him to pay a $500 fine and serve 30 days in jail. That order has been stayed pending appeal. On July 11, Gerber summoned both Habie and Bilton to appear before him on Sept. 9 to explain why they should not be found guilty of contempt for violating the settlement agreement by continuing to contact Lewis’ clients. Then, Gerber received notice that Greenberg Traurig, his wife’s employer, would be representing Habie, Bilton and Nical. The judge immediately recused himself. Alan T. Dimond, the Greenberg partner who serves as the firm’s lead counsel, could not be reached for comment, nor could his Greenberg associate, Mark F. Bideau. Bruce Rogow, the Fort Lauderdale, Fla., lawyer who has served as Nical’s local counsel, said that he welcomes the help. “This is a sprawling case,” Rogow said. “I was surprised to discover that there was a connection between the judge and Greenberg Traurig, but this was not a litigation tactic. These are good people.” Scarola disagreed. “It’s most definitely a litigation tactic from my perspective,” he said. Lake Lytal Jr., a partner in Lytal, Reiter, Clark, Fountain & Williams of West Palm Beach and an experienced Palm Beach County, Fla., litigator, said: “This obviously put Gerber in a position where he had no choice. No judge is going to handle a case in which his wife’s firm is involved. I don’t know that there’s anything unethical in a circumstance like this. It’s not unethical to take advantage of a situation.” In his recusal order, Gerber asked the clerk of the court to “randomly re-assign this case.” The new judge is Amy Smith, a former student at Nova Southeastern University’s law school. Rogow, who has taught on the Nova law faculty for three decades, said he sees no conflict in Smith presiding over the case, and that he has practiced before other students who have risen to the bench. “These are not clear-cut matters,” said Rose, the Stetson law professor. “You have a right to hire who you want. The courts presume that’s done in good faith. There’s always going to be another lawyer and another judge.”

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