During a discovery hearing in the First Judicial District’s legal malpractice lawsuit against its ex-attorney on the family courthouse project, the judge specially appointed to preside in the matter ruled that Obermayer Rebmann Maxwell & Hippel does not have to answer questions on whether former state Senator Vince Fumo requested the firm compensate him for including state funds for a new courthouse in the state’s capital budget for public works projects. Allegheny County Court of Common Pleas Senior Judge R. Stanton Wettick Jr. conducted the hearing Tuesday in Pittsburgh to iron out discovery disputes in the litigation.
The FJD is suing the law firm and ex-Obermayer Rebmann partner Jeffrey B. Rotwitt on allegations that Rotwitt committed legal malpractice, fraud and civil conspiracy for allegedly failing to disclose that — after he already was the FJD’s tenant representative on the family courthouse deal — he got on the other side of the deal by agreeing to split development fees with the first proposed developer on the project.
One of the FJD’s attorneys, Joseph Podraza of Sprague & Sprague, argued that the questions are necessary to figure out if some of the public money the FJD spent on predevelopment work was passed on through to Fumo and that information could be important to arguing punitive damages to the jury.
Wettick said it doesn’t matter what Obermayer Rebmann did with the money the FJD paid the firm for Rotwitt and others at Obermayer Rebmann to work on the project.
Obermayer Rebmann’s attorney, Jeffrey B. McCarron of Swartz Campbell, said the “involvement of Mr. Fumo [is] not a basis for the defense or any claims of the plaintiff.”
Fumo’s involvement is not probative to any issue in the case, McCarron further argued.
Catherine Recker of Welsh & Recker, who was there to represent Deilwydd Property Group FC LLC, a corporate entity in which Rotwitt is the principal, said in a statement, “Mr. Rotwitt categorically denies the outrageous and unfounded allegation made by FJD’s counsel that Mr. Rotwitt made payments to Senator Fumo in exchange for favorable legislation.”
Rotwitt has said in court papers that Fumo unilaterally amended the capital budget in 2007 when he learned that Rotwitt led a tour of the former Philadelphia Inquirer building as a potential courthouse site because Fumo was upset with the newspaper’s coverage.
The FJD, however, has suggested in court papers that Rotwitt might have been the one to get Fumo to make the amendment so Rotwitt could benefit from the selection of a site from which he also would earn development fees. The lawyers sat around two long wooden tables pushed together in the middle of Wettick’s courtroom with stacks of motions filling up the tables.
Wettick also heard arguments in his Pittsburgh courtroom as to whether Rotwitt should be sanctioned for what the FJD says are violations of the judge’s discovery order in June.
The FJD has asked that either default judgment be entered against Rotwitt on the FJD’s first count in its complaint alleging legal malpractice or Rotwitt be deemed to have made a “binding admission, for all purposes in this action, that Rotwitt never disclosed his fee-splitting agreement to [Pennsylvania] Chief Justice [Ronald D.] Castille, to any FJD representative, or to the Ballard Spahr attorneys [who also represented the FJD on the family court deal], nor ever obtained the FJD’s informed consent to that agreement,” according to court papers.
Wettick held back his ruling on an issue that comes down to the heart of the case: Did Rotwitt disclose or not disclose his dual role to Castille?
Only two people know what transpired, Podraza said: “That’s Mr. Rotwitt and the chief.”
“Mr. Rotwitt, through his gamesmanship and his failure to forthrightly address these questions” is saying to the court that he did not disclose the fee-sharing agreement, Podraza argued.
Rotwitt’s attorney, Eugene J. Maginnis Jr. of Dugan Brinkmann Maginnis and Pace, said there was only one conversation in which Rotwitt told Castille he was splitting fees with Donald W. Pulver, who had been engaged as the original developer of the proposed site, but there also were “tons of documents where he was listed” as co-developer.
Listing Rotwitt as co-developer was the same thing as splitting fees with Pulver, Maginnis said. But Wettick said he was not sure that in the eyes of Castille the term co-developer meant the same thing as splitting fees with developer Pulver. It is a jury question to decide if there was a conversation between Castille and Rotwitt, Maginnis argued.
There are not documents regarding the disclosure, Maginnis said.
The FJD’s counsel argued that Rotwitt has not sufficiently answered key factual issues, such as the details of how he allegedly disclosed his fee-splitting agreement with Castille and his communications with David Scolnic, an attorney with Hangley Aronchick Segal Pudlin & Schiller representing Pulver, who advised in an email that the fee-splitting agreement needed Castille’s sign-off.
The FJD also says that Rotwitt has not adequately described the communications with Ballard Spahr about his fee-splitting deal with Pulver.
The judge already struck Rotwitt’s first answers to those first interrogatories.
Wettick ruled against interrogatories directed to Rotwitt to identify and describe matters in which he represented clients in connection with commercial real estate properties.
Podraza argued that Rotwitt’s history with other clients goes to the standard of care for a person involved in real estate and whether architectural firm EwingCole also split fees with Rotwitt.
“The suggestion regarding kickbacks from contractors is without basis and untrue,” Recker said in a statement.
Wettick ruled in favor of letting the FJD get answers from Obermayer Rebmann to an interrogatory about Rotwitt’s annual compensation from 2002 through 2010, as well as the benefits paid on his behalf, including contributions to retirement or profit-sharing plans.
Overall, Wettick said he does not think interrogatories are that useful and “the deposition is the place things should be ferreted out.”
Richard A. Sprague of Sprague & Sprague also attended the hearing for the FJD.
Gerald J. Dugan of Dugan Brinkmann also attended the hearing for Rotwitt.
Candidus K. Dougherty, an associate with Swartz Campbell, also attended the hearing for Obermayer Rebmann.