Scott Greenspan ()
The First Department disciplinary committee has declined to take any action against a Manhattan attorney who was accused by a judge of pestering and intimidating jurors in a malpractice case he was monitoring for an insurance company.
The committee’s chief counsel, Jorge Dopico, said in a June letter that after conducting its own sua sponte investigation, taking testimony from attorney Scott Greenspan and reviewing affidavits of jurors, the panel has closed its file.
Greenspan said the letter amounts to a “complete exoneration.”
The Departmental Disciplinary Committee launched its probe after the New York Law Journal in November reported a case out of Onondaga County where Justice Deborah Karalunas (See Profile) rejected a verdict as influenced by intimidation and accused Greenspan, then an equity partner at Sedgwick, of harassing jurors (NYLJ, Nov. 19, 2013).
In her decision, Karalunas said jurors believed they were being stalked, monitored and possibly even videotaped by a person they assumed was working for the defendants in a dental malpractice case, Varano v. Forba, 2011-2128.
Varano was the first of about 30 cases involving Small Smiles Dentistry, a national dental chain accused of performing dozens of unneeded procedures on children to collect Medicaid benefits, to go to trial. The Syracuse case was filed on behalf of a boy who allegedly endured procedures ranging from extractions to root canals, often without anesthesia and occasionally while restrained, according to the complaint.
Greenspan was not directly involved in the case. Rather, he had been retained by National Union Fire Insurance Co., which insured some of the defendants, to monitor the trial and report back as to the potential coverage repercussions.
“My job was to advise whether there were implications for the insurance my client had issued to Small Smiles,” Greenspan said in an interview. “That’s why I was at the trial. I am an insurance lawyer.”
After the six-member panel delivered its unanimous verdict for the defendants, Karalunas visited the jury in the deliberation room to thank them for their service and ask if they had any questions.
“The first question the jurors asked me was whether they did a good job,” Karalunas wrote in her Nov. 18, 2013 decision. “The second question the jurors asked me was who was the individual who was stalking them throughout the trial.”
Karalunas said jurors identified the alleged stalker as Greenspan, and characterized him as “creepy.” They suggested he had waited in the lobby to ride the elevator with them, followed them to lunch and made them uncomfortable.
The judge promptly put Greenspan under oath. He testified that any contact he had with jurors was incidental and accidental. He admitted seeing jurors at a restaurant, but said there are only a couple eateries within walking distance of the courthouse and it was mere coincidence that he chose the same place for lunch.
The attorney acknowledged he was occasionally with jurors in one of the courthouse elevators. In one instance, Greenspan said a juror asked if he was a reporter, but Greenspan said he politely declined to identify himself.
Attorneys for the various parties were present when Greenspan testified but were not permitted to participate. Karalunas alone questioned the Sedgwick partner, according to records.
A few days later, Karalunas interviewed Juror No. 4 in private. She provided attorneys with a redacted transcript for their eyes only and issued an order barring lawyers from contacting any jurors.
Subsequently, she held that the verdict was the product of intimidation and issued a scathing opinion accusing Greenspan of “violat[ing] the sanctity of the jury.”
“This is a case where jurors performing their civic duty were made to feel bothered and scared,” the judge wrote. “This is a case where the administration of the law was imperiled.”
In an interview, Greenspan said the decision destroyed his career and led to his resignation from Sedgwick. He said that while his colleagues and partners were loyal, the stigma of the judge’s criticism became an insurmountable distraction to his practice.
Greenspan noted that Karalunas’ accusation made the front page of the New York Law Journal and was reported in the Syracuse and Albany media, the ABA Journal, and on various blogs and websites.
“I went from being an equity partner to being unemployed because the legal and insurance community assumed that I did what the judge said I did,” Greenspan said. “The firm has been supportive and I have nothing but good to say about it, but I felt it was best to leave. I have been spending all my time trying to get my reputation back.”
Sedgwick general counsel Michael McGeehon of San Francisco confirmed that Greenspan left of his own accord.
“In my view and in Sedgwick’s view, Scott did nothing wrong and nothing improper,” McGeehon said. “He was in a difficult situation and left our firm voluntarily.”
In early December, Greenspan received a letter from Naomi Goldstein, deputy chief counsel of the Departmental Disciplinary Committee, advising him that the panel had been alerted to Karalunas’ decision by the New York Law Journal and had opened an investigation. “At the very least, your alleged conduct would appear to violate Rule 8.4 (h) of the New York Rules of Professional Conduct,” Goldstein wrote, referring to the rule governing “conduct that adversely reflects on the lawyer’s fitness as a lawyer.”
Greenspan said he was actually relieved to get a letter from the disciplinary committee, knowing that he would have a chance that he said he didn’t have with Karalunas to present evidence in his defense, including statements from jurors that were procured by defense counsel after the judge withdrew her order prohibiting juror contact.
In the disciplinary matter, the committee had access to affidavits from four jurors and two alternates, including Juror No. 4, whose comments in the jury room and in camera questioning by Karalunas apparently prompted the criticism in the first place. All of them insisted that Greenspan had no affect on the verdict.
Juror No. 4 said that Greenspan never attempted to communicate with her and that the only time she spoke with him was in the elevator when she asked if he was a reporter.
“There was no mention of Mr. Greenspan at all during jury deliberations,” the juror said in an affidavit. “Mr. Greenspan had nothing to do with our deliberations and nothing to do with our unanimous verdict in favor of the defendants. Mr. Greenspan had no impact at all on the case or the ultimate outcome.”
Other jurors who submitted affidavits said that while they were aware that Greenspan was a spectator in the courtroom throughout the trial, they did not find him at all intimidating and their verdict was unaffected by his presence.
Additionally, according to affidavits, jurors confirmed that it was a juror, not Greenspan, who initiated the conversation in the elevator asking if he was a reporter. Jurors said Greenspan responded: “I’m sorry, but I can’t answer your question. No one can talk to the jury.”
On June 11, Dopico, the grievance committee’s head counsel, sent Greenspan a one paragraph, “personal and confidential” letter stating: “Based on your testimony at your examination under oath on April 4, 2014, and the affidavits of jurors, the committee has decided to take no further action. We have closed our file in this matter.”
But Greenspan, who said he had never been judicially criticized in 20 years of practice, remains bitter that his career was sidetracked by what he views as a judge’s ex parte communication with a juror.
“It feels good to get vindicated,” he said. “It is a first step to getting my career and my life back. The judge took away everything from me without a hearing. It was unprecedented, unconscionable and just wrong.”
Greenspan, who is currently interning with New York City Civil Court Judge James d’Auguste (See Profile), said the next order of business is finding a job. He has not ruled out returning to Sedgwick but is leaning toward a fresh start elsewhere.
“The decision destroyed my reputation in the community because people tend to believe what a judge says,” he said.
Karalunas was unavailable for comment.
Legal ethics expert Hal Lieberman, former chief counsel to the First Department disciplinary committee and now a partner at Hinshaw & Culbertson and Law Journal columnist, represented Greenspan before the disciplinary committee.
“He was the victim of a lot of negative publicity, and the victim of a decision which is probably going to be reversed on appeal,” Lieberman said. “His reputation was really hurt, and he didn’t do anything wrong in my opinion, which is based on the record. What happened to him was very unfortunate. He was treated like a stalker and a creep, and he didn’t do anything wrong.”
The juror affidavits figure prominently in an appeal the defendants recently submitted to the Appellate Division, Fourth Department, urging the panel to overturn Karalunas and restore the verdict.
“The affidavits provided clear evidence that the jurors were not afraid of, or were intimidated by, Mr. Greenspan, and that he played no role in either the deliberations or verdict,” said Lia Mitchell of O’Connor, O’Connor, Bresee & First in Albany, counsel for the defendants, in a brief submitted to the panel on June 12.
Richard Frankel, an attorney with Hackerman Frankel who is co-counsel to the plaintiffs, cautioned that after-the-fact explanations from jurors are generally inadmissible.
“You can imagine if you ask a juror essentially, ‘Did you violate your oath and consider outside influences in deciding the case?’ what do you think they are going to say?” Frankel said. “The issue on whether the judge was right to grant a new trial is now before the Fourth Department, and it raises questions about the admissibility of those affidavits.”
Also representing the plaintiffs is Patrick Higgins, a partner at Powers & Santola. The plaintiff’s reply brief has not yet been filed and is due at the end of the month.