On Aug. 31, visiting Judge David Peeples granted a motion to recuse 193rd District Judge Carl Ginsberg from presiding over Patten, et al. v. Johnson, et al., a suit filed by three Dallas lawyers against Fish & Richardson, JAMS and others.
In their May 23 First Amended Petition, Ashley Brigham Patten, Jacques Yves LeBlanc and Robert C. Karlseng allege they were partners in title services businesses with H. Jonathan Cooke. Cooke sued the trio in 2006, and the business dispute went to arbitration. As alleged, JAMS arbitrator Robert W. Faulkner awarded Cooke $22 million, including $6 million in fees for his lawyers — M. Brett Johnson and Geoffrey Harper. Ginsberg confirmed the award in Cooke v. Karlseng, et al., but Dallas’ 5th Court of Appeals vacated it and remanded the case to the trial court, where it is pending before Ginsberg.
The Patten suit centers on the plaintiffs’ allegation that during the 2008 arbitration, JAMS, Faulkner, Fish & Richardson and principal Harper, and Johnson — all aided and abetted by Cooke — failed to disclose a social relationship Johnson had with Faulkner. As alleged, JAMS rules require such disclosure. Johnson was a Fish principal at the time of the arbitration; he now is a partner in the Dallas office of Farney Daniels.
The Patten plaintiffs allege, among other things, that Johnson dined “with Faulkner at the Capital Grille, the Mansion on Turtle Creek, and at their country club”; Johnson and Faulkner sat “together in Johnson’s floor seats for the Dallas Mavericks”; and Johnson emailed Faulkner on his personal account.
JAMS promised it “would provide a single, neutral arbitrator” to preside over the arbitration. . . . JAMS and Faulkner breached that contract by failing to provide a neutral arbitrator,” the Patten plaintiffs allege in their petition.
The defendants in Patten — Cooke, Johnson, Harper, Fish & Richardson, Faulkner and JAMS — deny the allegations. In their June 18 answer, Fish, Johnson and Harper cite “the doctrine of qualified attorney immunity” and allege the claims lack subject-matter jurisdiction. In June 20 answers, Cooke, Faulkner and JAMS seek dismissal, also alleging a lack of subject-matter jurisdiction.
On Aug. 2, the Patten plaintiffs moved to recuse Ginsberg because in the Cooke case, the judge allegedly held an ex parte, off-the-record interview with Faulkner.
In the recusal motion, the Patten plaintiffs alleged the following: On June 22, 2009, Ginsberg held a hearing in Cooke to discuss Patten, LeBlanc and Karlseng’s motion to compel discovery related to the Johnson-Faulkner relationship and motion for continuance. Rather than grant the motion to compel, Ginsberg allegedly accepted that §154.073 of the Alternative Dispute Resolution Act permitted him to “interview” Faulkner in cameraand off the record.
On July 2, 2009, during a 45-minute meeting, Ginsberg allegedly gave Faulkner and his counsel, Vinson & Elkins partner George Kryder, “private time to review the demonstrative timeline of contacts between Faulkner and Johnson. . . .” As alleged, after direct and cross-examination of Faulkner in open court, Ginsberg confirmed the arbitration award. On June 28, 2011, the 5th Court vacated the arbitration award and remanded Cooke to Ginsberg, where it is pending.
“Because the judge of this Court held the ex parte, off-the-record interview with Faulkner any further proceedings before this Court in this lawsuit [Patten] are irreparably tainted,” the plaintiffs alleged in their recusal motion. Patten deserves “an unquestionable judicial assignment and a clean break from the issues in the prior litigation.”
On Aug. 6, Fish & Richardson filed a response to the recusal motion alleging, among other things, that judges who “decide discovery issues in camera do not have to recuse. . . . [P]laintiffs cannot contend that the Court’s potential exposure to information deemed confidential and undiscoverable would cause the public to doubt the Court’s impartiality. . . . If Plaintiffs’ unprecedented position were adopted, any judge who decided to protect privileged or confidential information after an in camera review would have to recuse.”
JAMS and Faulkner filed an Aug. 6 opposition to Ginsberg’s recusal, alleging Patten should be dismissed for lack of jurisdiction. Among other things, they alleged the “Faulkner interview” was proper under the Texas Code of Judicial Conduct because it “did not concern the merits of the pending case [Patten].” They also alleged the Patten plaintiffs “waived the objection they now raise by not raising it in the underlying proceedings [Cooke].”
On Aug. 8, John Ovard, presiding judge of the 1st Administrative Region, assigned the recusal matter to Peeples.
In an Aug. 20 reply to the recusal opposition motions, the Patten plaintiffs denied they waived any objections and alleged that in Cooke they never agreed to or authorized an off-the-record ex parte interview by Ginsberg of Faulkner.
At an Aug. 30 hearing, Coyt Randal “Randy” Johnston, a partner in Dallas’ Johnston ♦ Tobey who represents Harper and Johnson, and Shawn Long, an associate with Sayles Werbner in Dallas who represents Cooke, told Peeples their clients also opposed the recusal motion.
In his Aug. 31 order, Peeples granted the motion to recuse: “In making this ruling this court is not questioning Judge Ginsberg’s integrity; nor is the court suggesting he would be unfair,” Peeples wrote. “The standard for recusal under Rule 18b(b)(1) is whether a judge’s impartiality might reasonably be questioned, not whether the judge actually would or could be fair. Under the circumstances of this case, the court finds that the Rule 18b standard has been proven.”
Susan Hays of the Law Offices of Susan Hays in Dallas, who represents the plaintiffs, welcomes Peeples’ decision and looks forward to proceeding with discovery in Patten with another judge.
Kryder, who represents JAMS and Faulkner, and Long each did not return a telephone call seeking comment after Peeples’ ruled.
Johnston says he understands Peeples’ ruling. But he believes opposing the recusal motion was the right step to take because “Judge Ginsberg deserved a defense. . . . We weren’t fighting to achieve an end; we were fighting about the process.”
Rod Phelan, a Dallas partner in Baker Botts who represents Fish & Richardson, writes in an email: “We’re pleased Judge Peeples made it clear that he does not question Judge Ginsberg’s integrity or his ability to fairly preside. Wherever this case lands, it will soon be over.”