A district ethics committee has dismissed charges that a staff lawyer for the Port Authority of New York and New Jersey misled a judge about whether the New Jersey Tort Claims Act applies to personal injury suits against the agency.
The panel, in a Dec. 19, 2012, report, found that the Port Authority’s internal investigation that led to the filing of a grievance against David Hood was undercut by questions about the veracity of testimony that formed the basis for it.
According to the complaint in District VI Ethics Committee v. Hood, No. VI-2010-22E, Hood filed a trial brief with a defense based on the Tort Claims Act, known as Title 59, in a Hudson County suit against the Port Authority, despite having been told at the time he was hired that the statute did not apply,
Hood filed an amended brief without the Title 59 argument but allegedly never told Superior Court Judge Hector Velazquez of Hudson County that he had withdrawn that defense in the case, Haskins v. Port Authority, No. HUD-L-1532-08.
During the trial, Hood failed to clarify that Title 59 did not apply. He moved unsuccessfully for a directed verdict based in part on the plaintiff’s failure to show permanent injury as required by the statute. He argued the same point in his summation, and he allowed Velazquez to charge the jury that the plaintiff was required to meet the Title 59 injury threshold. The case ended in a defense verdict, the jury finding no negligence.
The ethics complaint charged Hood with advancing a defense he knew to be frivolous in violation of Rule of Professional Conduct 3.1; knowingly making a false statement of law in his summation (RPC 3.3(a)(1)); and knowingly failing to disclose to Velazquez controlling legal authority he knew to be directly adverse to his client that opposing counsel did not raise (RPC 3.3(a)(3)).
In his answer, Hood denied being informed when he started the job that Title 59 did not apply, filing a trial brief with such a defense and arguing the defense in summation.
But he admitted that he filed an amended brief without the previously included Title 59 defense and that he moved for a directed verdict based on failure to show permanent injury. In addition, he asserted as an affirmative defense that at all times he presented “good-faith arguments based on facts presented” and mentioned in mitigation that he had no prior discipline or grievance in his almost 16 years of practice and that Haskins was his first trial in New Jersey.
In the ethics committee report, panel chairman Robert Verdibello said Velazquez testified at the hearing that he had “no recollection of [Hood] making any representations as to the applicability of Title 59,” and Hood’s adversary, Kearny solo Norman Doyle, wrote a letter to the same effect.
Verdibello, of Connell Foley in Jersey City, said the panel based its decision on testimony and written correspondence from Christopher Hartwyk, a former first deputy general counsel for the Port Authority who was involved in an internal investigation of Hood that led to the ethics grievance. Hartwyk admitted that the credibility and reliability of the investigation were impugned because Sam Stanton, a former colleague of Hood, had supplied much of the testimony and documentation.
Verdibello quoted from a letter by Hartwyk saying that Stanton was suspended without pay from his job as staff attorney for “insubordinate, uncooperative and, in some instances, misleading participation in the Haskins investigation” and that “depending on which version of Mr. Stanton’s account of the facts is deemed accurate, the veracity of statements made by other attorneys in the course of the investigation may be questionable.”
Relevance to Whistleblower Suits
Hartwyk, now with Genova Burns Giantomasi & Webster in Newark, was a defendant in two whistleblower cases filed over the Hood matter, one of which was brought by Stanton.
Stanton sued the Port Authority, its general counsel Darrell Buchbinder and Hartwyk, claiming he was suspended and then fired for blowing the whistle on Hood. That suit, Stanton v. Port Authority, 11-cv- 5358, settled on confidential terms and was dismissed with prejudice last June. The Port Authority denied a reporter’s request for records related to the settlement.
The other suit — also against the Port Authority, Hartwyk and Buchbinder — was brought by Hood’s supervisor, Donald Burke, the attorney of record for the Port Authority in New Jersey litigation, whose name appeared on the briefs filed by Hood. Burke alleges he was subjected to retaliation for notifying superiors about Hood’s possible violation of ethics rules. He claims he resigned and took early retirement in 2010 at age 55 after he was shut out of the Hood investigation and removed as counsel of record.
Burke also claims retaliation because he would not go along with discrimination against older female attorneys and refused to alter job evaluations to make the disparity appear justified.
He sued under the Age Discrimination in Employment Act and the New Jersey Law Against Discrimination (LAD), but last October, U.S. District Judge Jose Linares dismissed Burke’s LAD and constructive discharge claims.
Stanton reacted to the ethics committee’s decision in a written statement, saying Hood “sat back and allowed Judge Velazquez to charge the jury that plaintiff was required to meet the Title 59 permanent injury threshold to prevail” and “[i]f the Hearing Panel members were provided this information, I believe the outcome undoubtedly would have been different.”
The panel had the Haskins transcript, says Office of Attorney Ethics First Assistant Ethics Counsel Michael Sweeney.
Hood, Verdibello and Burke decline comment, as does Stephen McCurrie of McCurrie McCurrie & McCurrie in Kearny, who presented the ethics case.
Not returning calls were Doyle and Rosemary Alito of K&L Gates, a lawyer for the Port Authority in both whistleblower actions.