When a lawyer becomes a judge, she or he need not promise to always stay a judge. Lately, more and more judges have been jumping off the judicial track to take more lucrative jobs with private law firms, often as a dispute-resolver-in-residence.
The latest person to make such a move is former Supreme Court Chief Justice C. Ian McLachlan, who plans to take a position in the Hartford office of McElroy, Deutsch, Mulvaney & Carpenter in a few weeks.
It’s a regional firm based in New Jersey that recently merged with Hartford’s former Pepe & Hazard.
McLachlan turned 70 in June, reaching the mandatory retirement age for Connecticut judges. But under a fairly new statute, he has the authority to finish up all the cases he was working on until they finally go to print in the Connecticut Law Journal.
In July, McLachlan began discussions with attorney Louis Pepe in Hartford, and with other top partners at McElroy’s New Jersey headquarters. About two weeks ago, to McLachlan’s surprise and dismay, he learned that one of the 130 cases he had participated in over the past year involved Gilbane Construction, the general contractor in the ill-fated, $24 million University of Connecticut Law Library project, which has been plagued with leaks, falling granite and other construction defects.
For more than 20 years, Pepe & Hazard, and Lou Pepe in particular, has gained a reputation as a top Connecticut construction law firm. Pepe & Hazard, and later McElvoy, was Gilbane’s law firm. When Gilbane and a dozen other contractors were sued by the state for causing the defects, 12 years after construction, the statute of limitations and a version of sovereign immunity came into play.
In 2009, then-Attorney General Richard Blumenthal argued that the state can sue after the statute of limitations has expired. The notion is that the sovereign is too busy doing good to be held to strict deadlines like the statute of limitations. In representing the state in court, attorney Timothy Fisher, of McCarter & English, explained that the doctrine of nullum tempus occurit regi “stands for the proposition that the king,” or in this case the attorney general, “is always busied for the public good, and therefore has not leisure to assert his right within the times limited to subjects.”
Waterbury Judge William T. Cremins thought the doctrine sounded too musty and unfair to continue, and threw it out as a defense for the state. David Rosengren, Gilbane’s Pepe & Hazard lawyer, reacted happily in 2009, since “this is the position the state takes in virtually every piece of litigation against it” – that it can bring a construction claim whenever it wants to. Without some end of exposure, he asked, what contractor can calculate cost and risk?
When the case went to the Supreme Court, Chief Justice Chase T. Rogers and Flemming L. Norcott Jr. recused themselves, and Richard N. Palmer was the senior justice for a panel of five, which included McLachlan.
The case was argued in January, and how it turned out has yet to be disclosed.
Clearly, this is a case of major interest to Connecticut’s construction industry — and to taxpayers who pay for public works.
Fast forward to early this month.
McLachlan, searching through the unpublished cases to see whether any depended on his vote, stumbled upon the Gilbane case, which is styled State of Connecticut v. Lobardo Brothers Construction Co., et al., and includes some two dozen subcontractors. Gilbane’s presence, and Pepe & Hazard’s representation, are buried in a long list of 10 parties and two amici curiae.
When McLachlan discovered the conflict — that his new employer was representing a party in a case before him — he said something “probably unprintable,” he told the Law Tribune, and promptly took steps to recuse himself. Appellate Court Judge Douglas Levine has been appointed to take his place, to read the briefs and listen to the tapes of the oral arguments, and to come to his own conclusions of which way his vote should go.
The situation has raised eyebrows, if not hackles, among some of McLachlan’s fellow jurists. According to the Judicial Branch, conflicts of interest scenarios are covered by the Code of Judicial Conduct. “It is the obligation of each individual judge to determine when there is a conflict and to act appropriately. If there is any change to the timeline regarding this matter, it will be insignificant,” said Judicial Branch spokeswoman Rhonda Stearley-Hebert.
Appellate expert Wesley W. Horton, of Hartford’s Horton, Shields & Knox, said that even with a case that is headed to the printer, the vote is not final, because any justice has the power to change his or her vote — or amend the opinion — until it’s officially published. Last-minute changes are extremely rare, Horton noted, but he added that McLachlan had no choice but to recuse himself because the case was technically still being decided.
For his part, McLachlan did not attempt to cast blame on clerks or underlings. “If a mistake was made, it was my mistake,” he said. He immediately checked with the Appellate Clerk’s office to determine whether any other cases he was deciding involved Pepe & Hazard or McElroy. This was the lone conflict, he said.
In retrospect, McLachlan said, “I guess I could have, before I had discussions with McElroy, looked at every case which was not yet a final case, to see if I was on any of those cases which were not yet final, in which they were involved.” He said he honestly believed this case was finished, and he wasn’t “consciously” aware the McElroy firm was involved in it until he took a closer look. •