An Atlanta attorney could face disciplinary action for sending a poem to a Nassau County special referee complaining about his client’s lengthy divorce litigation.
Days after mediation efforts broke down in a nine-year-divorce action, A. Todd Merolla of Merolla & Gold, who represents Drew Doscher, wrote a 60-line poem in a Dec. 23 e-mail that began, “Twas the week before Christmas, in the Matrimonial Part,/ All the creatures were stirring, putting their horse in front of the cart./The fee applications were pending, bills demanding to be paid,/In hopes that Drew’s resolve, soon would fade.”
The poem was sent to Special Referee Frank Schellace and Merolla’s adversary, Kenneth Weinstein of Garden City, who had recently added more invoices to a motion for counsel fees.
The poem refers to “The attorneys and consultants nestled all snug in their beds/While vision of paid fees danced in their heads.”
Weinstein moved for a finding of contempt and sanctions against Merolla.
Schellace denied the contempt and sanctions motion in a Feb. 29 order and report but referred the e-mail to the grievance committee, writing, “Whether the offensive, inappropriate and unprofessional ‘Poem’ rises to the level of an ethical violation, it is for the Grievance Committee, and ultimately the Appellate Division, Second Department, to determine.”
The poem and Schellace’s report are now part of the record before the Second Department, which is considering an Article 78 petition filed by Merolla who contends his client’s divorce has become “a rudderless vessel that continues to sail ad infinitum” since the May 2011 death of Supreme Court Justice Robert Ross, who had heard 27 days of trial on the case.
“The Honorable One now passed, who will take the torch?” Merolla asks in his poem. “To rule on pending motions, some two years on the porch./Justice delayed is Justice denied,/Will Article 78 inspire someone’s pride?”
The Article 78 petition asks the Second Department to compel rulings on a series of pending motions in the case, which has since been reassigned to Supreme Court Justice Norman Janowitz (See Profile).
It also asks the Second Department to consider a transfer of venue to Manhattan.
Two of the four motions at question have been pending since just before Ross’ death. The other two are Mr. Doscher’s request for a mistrial based on the judge’s death and the termination of certain interim maintenance payments. Ms. Doscher opposes the mistrial and has cross-moved for $351,000 in legal fees.
Schellace’s February order and report recommended, among other things, granting the mistrial and denying the vacatur of the interim maintenance but allowing argument as to whether the maintenance order should be modified.
Janowitz has not yet ruled on the pending motions.
“The fact is, the Doscher Divorce is not going away; adjudication on the merits must be rendered by a Supreme Court Justice,” Merolla wrote in the Article 78 petition, Doscher v. Zimmerman, 2012-1438. “The judiciary needs to act in furtherance of its constitutional and statutory duty, something the Matrimonial Part of Nassau County has proven incapable of doing,”
The Article 78 petition is opposed by Ms. Doscher and the state Attorney General’s office, which represents Janowitz, Schellace and Justice Hope Zimmerman (See Profile), who is now the supervising judge of the Nassau County Matrimonial Center.
In court papers, the attorney general argued it was “well-settled that a court has the inherent jurisdiction, and the broad discretion, authority and power, to create and control its own calendar and to otherwise supervise the course of litigation before it.”
Ms. Doscher argues that the change of venue was improper because no such demand had been made in the lower court. Moreover, Mr. Doscher’s request to have decisions rendered on the motions were mooted by Schellace’s Feb. 29 report, she says.
Weinstein describes the poem in court papers as “outrageously offensive, utterly unprofessional [and] threatening.”
No oral argument took place on the Article 78 petition, but there was an April 27 submission date in the Second Department.
Merolla, who was one of Mr. Doscher’s 2008 trial attorneys, said he sent the poem in exasperation over the case’s length, and insisted that he had “done absolutely nothing wrong” in sending the poem.
“I stand by every single thing in that poem,” he said.
Merolla said he has not been contacted by the grievance committee. He added that he was not aware of any rules of professional conduct he had violated.
Schellace did not refer to any specific rules. However, Rule 3.3 of the state Rules of Professional Conduct says, among other things, that attorneys appearing before a court must not “engage in undignified or discourteous conduct” or “engage in conduct intended to disrupt the tribunal.”
Merolla said it was not until after his Article 78 was filed, almost two months after he sent the poem, that Schellace appeared to take issue with the poem saying it was “clearly in retribution” for the court action.
As for the pending Article 78 action, Merolla added, “The goal here is to get the retrial, that’s all…We’re trying to get our day in court that’s it.”
His poem ends with the words “Tis the season for giving and to be jolly,/There must someday be an end to this folly.”
Weinstein did not return a call seeking comment.
Assistant Attorney General Susan Anspach appeared for the state in the Article 78 action.
@|Andrew Keshner can be contacted at firstname.lastname@example.org.