It’s been almost two years since the Law Offices of Herssein & Herssein in North Miami first moved to disqualify Miami-Dade Judge Beatrice Butchko from a contract dispute case, but the battle continues.
After the Florida Supreme Court ruled that Butchko’s Facebook friendship with opposing counsel wasn’t enough for disqualification, the case is back in trial court with about 35 motions pending.
On March 1, the firm — doing business as the Herssein Law Group — filed a motion for judicial notice and on Wednesday sought an evidentiary hearing and sanctions, alleging the judge’s lawyers colluded with opposing counsel days before she recused herself from the case.
The firm had sought to remove Butchko from presiding over a legal battle with its then-client, U.S. Automobile Association, because the judge’s Facebook friend Israel Reyes represented an association official in the case.
After much back and forth, Butchko recused herself Feb. 1 and the case was temporarily reassigned to Broward Circuit Judge Carol-Lisa Phillips.
The firm now alleges that a few days prior, opposing counsel Stephen Gillman of Shutts & Bowen gave legal advice and improperly discussed the case with Butchko’s lawyers Stephanie Daniel and Susan Crosby of the Florida Attorney General’s Office.
The AG’s office represents Butchko in a separate civil case brought by the firm’s founder Reuven T. Herssein in January.
That suit asks the court to order Butchko to preserve her social media accounts for electronic discovery, alleging she’d “failed to follow the law.” According to the complaint, Butchko might delete or edit them in light of Florida Supreme Court Justice Jorge Labarga’s dissenting opinion urging judges to avoid social media.
Butchko’s lawyers did not respond to a request for comment before deadline but argued in a motion to dismiss that there’s no need for discovery, and called the complaint one in a series of attempts to harass Butchko and “to manufacture a basis for recusal.”
Herssein then claimed the possibility of future litigation is “reasonably foreseeable” because of Butchko’s “sudden sua sponte recusal,” to which the judge replied that Herssein’s complaint was filed “without any foundation to believe that there have actually been any improper communications” between her and Facebook friend Reyes.
What do the emails say?
According to email screenshots attached to the Herssein Law Group’s motion, Crosby sent Gillman a motion to dismiss, filed in Butchko’s civil case. Gillman replied with documents and updates relating to the USAA case.
This, according to Herssein, violates Florida statutes 838.015 and 838.016, which govern bribery and unlawful compensation or reward for official behavior.
“Why are USAA’s lawyers discussing the case with the sitting judge’s lawyer? And why is USAA’s lawyer rendering legal advice to Judge Butchko’s lawyer?” Herssein said. “This is outrageous to say the least. This is a perversion and an obstruction of the administration of justice, as the email evidences.”
Gillman later emailed Daniel to say, “I assume you have been advised that Judge Butchko sua sponte recused herself in Herssein 1 and the case has been reassigned. I would appreciate if you could advise if, when the suit against Judge Butchko is dismissed.”
Daniel replied that she didn’t know whether the case would be dismissed and that she was waiting for a hearing on her motion, which “may move things along.”
Gillman denies any wrongdoing.
“There has been no collusion of any type between Shutts & Bowen and Judge Butchko and absolutely no wrongdoing by anyone at our firm. We will shortly be filing our response in the court,” Gillman said.
Butchko rubbished the claims in a March1 court filing that said “nothing about this email suggests collusion.”
“The email only reflects Mr. Gillman’s speculation that once Judge Butchko disqualified herself this action might be dismissed.”
Read the motion for hearing and sanctions:
The emails don’t appear to show collusion, according to Jan Jacobowitz, a legal ethics expert and University of Miami law professor who reviewed the documents at the Daily Business Review’s request.
“It looks like professional courtesy, where lawyers are exchanging information about public documents and the status of the case,” Jacobowitz said. “I don’t see anyone offering anybody advice in those.”
The Herssein firm sued in 2015, alleging USAA breached a contract that caused it to close its Tampa office and let go of 15 Miami employees. Its lawsuit seeks $5 million in legal bills and has been plagued with internal allegations since its inception.
“Who knows? Maybe it was a terrible contract, maybe USAA owes millions of dollars,” Jacobowitz said. “But the style of litigation appears to be vitriolic in nature, and aggressive. It’s ugly.”
For Jacobowitz, attacking the judiciary seems extreme.
“It leaves a bad taste, I think,” she said. “When the focus shifts to attacking your opposing counsel and attacking the judge, while sometimes there may be merit in that, generally there’s a loss of focus as to what’s really at issue in the case.”
Related stories: Former Chief Justice Encourages Judges to Get Off Facebook