Mark Zauderer, court-appointed referee (NYLJ/Rick Kopstein)
One of the former partners embroiled in the combative breakup of New York personal injury firm Napoli Bern lashed out at court-appointed referee Mark Zauderer on Thursday, saying Zauderer “has failed in his charge to resolve this dispute” and allowed the matter to turn “into a litigation upon itself.”
“This was a settlement in which we were supposed to get on with our lives, but I have instead spent countless hours in front of the referee getting little accomplished,” Paul Napoli said in an email.
The criticism of Zauderer—a senior partner at litigation boutique Flemming Zulack Williamson Zauderer—came a day after he issued a ruling that removed Napoli’s counsel and criticized Napoli’s behavior during proceedings.
Zauderer granted a motion Wednesday by Boies Schiller Flexner to withdraw from representing Napoli and rejected Napoli’s request to use “hybrid representation,” in which Napoli would be pro se on some issues while the firm would remain counsel on others.
In his 10-page decision, Zauderer repeatedly complained about Napoli confusing and manipulating an already complex dissolution process by blaming miscues and miscommunication on his lawyer, Boies Schiller partner Luke Nikas, and seeming at times to part ways with him.
“Regrettably, the record of these proceedings reflects a continuing pattern of Mr. Napoli’s disrespect for court orders, his alternately firing and re-hiring his counsel to manipulate the course of the hearings, his ‘on the record’ contradiction of his statements by his counsel, and in one instance, his possibly unethical attempt at having another individual communicate ex parte with the court,” Zauderer wrote.
He added,”Moreover, it is unclear at times whether Mr. Napoli is speaking as a fact witness, or as a pro se advocate. For the continued efficiency of the judicial process and accountability, it is critical that each party to this proceeding speak through one voice—either through counsel or pro se, but not both.”
Napoli’s remarks about Zauderer’s performance as referee marked another turn in the saga of a long-running law firm breakup that has most often made headlines because of the public acrimony between former name partners Napoli and Marc Bern.
Zauderer declined to comment on Napoli’s remarks on Thursday.
Napoli Bern’s acrimonious breakup started in 2014, when Napoli filed suit alleging Bern had frozen him out of the business at a time when Napoli was hospitalized with leukemia. Bern, meanwhile, alleged that once he took over day-to-day management of Napoli Bern, he discovered misconduct on Napoli’s part.
The two sides agreed to a settlement in August 2015 and split into separate firms: Napoli Shkolnik and Marc J. Bern & Partners. The settlement included the appointment of Zauderer, who as referee has all the powers of a court to rule on disputes in Napoli Bern’s wind down.
Zauderer has issued more than 20 rulings and, by his own account, spent countless hours hearing disputes and matters that Napoli and Bern were unable to resolve on their own. Most recently, Zauderer ruled that former name partner Bern consented to the firm’s $5 million donation to the National September 11 Memorial & Museum. Bern’s attorney said he plans to appeal (NYLJ, April 5).
While granting Nikas’ motion to withdraw as counsel, Zauderer warned that he thought Napoli should look into retaining a new attorney. “Although Mr. Napoli has a presumptive right to proceed pro se, in the view of the referee, it is ill-advised,” he said.
Nikas said Thursday that he still represents Napoli as his personal counsel and in matters connected to the firm dissolution, just not in the litigation before Zauderer.
He characterized his client’s request somewhat differently than Zauderer did: Nikas said that Napoli wanted to use the hybrid representation to keep down mounting costs, which he said have reached nearly $900,000 in fees owed to Zauderer. To request the hybrid arrangement, Nikas said Napoli had to allow a motion to withdraw.
He said that there was no split between him and his client. “Both Napoli and I wanted to move forward together in the case,” he said.
In a statement Thursday, Bern’s attorney, Clifford Robert of Robert & Robert, said that he hoped “Mr. Napoli has the good sense to hire new counsel so that these proceedings may continue in an orderly fashion.”