Judge Can't Be Deposed by Party Building Legal Malpractice Case

, New Jersey Law Journal

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Israel Dubin

The Rotolo firm then sued the Jacobsons for legal fees, but the complaint was dismissed without prejudice because the administrative action was ongoing.

In November 2012, the Jacobsons petitioned the court for an order allowing prelitigation discovery so they could depose Dubin for an expected malpractice claim or counterclaim against the Rotolo firm.

They argued that Dubin’s testimony would be crucial to that claim and to defending the fee action and might help in preparing the affidavit of merit needed for the malpractice claim.

The Jacobsons further argued that since the discrimination claims might not be decided until February or March 2013, they were worried that the passage of time might cloud Dubin’s memory of what occurred in July 2010.

The Attorney General’s Office submitted papers on behalf of Dubin opposing the discovery.

Hunterdon County Superior Court Judge Peter Buchsbaum denied the petition on Dec. 24, 2012, stating that a judge’s role in settlement talks is privileged and that compelling judges to testify about negotiations would paralyze the settlement process.

On appeal, Jacobson argued that the deposition should be allowed because he would not be asking about Dubin’s decision-making process—since Dubin was not the judge who would decide the case—but wanted to inquire about statements his lawyer made outside his presence and Dubin’s observations about the attorney-client relationship.

Jacobson got permission to supplement the record on appeal with an email message Dubin sent to him in error.

In response to an Aug. 30, 2010, message from Jacobson that he had discharged the Rotolo firm, Dubin stated, “O.K. I’m not surprised one bit.”

Dubin had apparently meant to send the message to a court employee because his email instructed the recipient to “make the change on the service list” and set Sept. 30 as the “control date for his selection of new counsel.”

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