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

, New Jersey Law Journal

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Israel Dubin

A plaintiff who fired his lawyers out of dissatisfaction with a settlement they negotiated will not be allowed to depose an administrative law judge to gather evidence for a possible malpractice claim.

“The judge cannot be deposed about his observations of what transpired in the settlement discussions or asked to comment on his impressions of the relationship between an attorney and his client,” a New Jersey appeals court said Monday.

Daniel Jacobson sought to question Israel Dubin, a now-retired administrative law judge, about his observations during talks in a bias case in which the Rotolo Law Firm of Lebanon represented Jacobson.

The plaintiff, a bisexual born in Honduras, brought a hostile-environment discrimination case against the Jackson School District for allegedly allowing him to be harassed and threatened because of his sexual orientation and national origin.

In 2007, about a year after Jacobson graduated from Jackson Memorial High School, then-Attorney General Stuart Rabner issued a press release stating that the Division on Civil Rights had found probable cause that the shool district’s conduct violated the Law Against Discrimination.

When the matter went to the Office of Administrative Law for adjudication, Division on Civil Rights Director J. Frank Vespa-Papaleo joined Jacobson as a co-complainant.

The ALJ assigned to conduct the hearing, John Futey, asked Dubin to handle settlement negotiations.

After three days of negotiations, a settlement was reached and placed on the record. An agreement dated July 16, 2010, was signed by Jacobson, his lawyer Victor Rotolo and the school district’s lawyer, subject to approval by the board of education.

Before the board gave its approval,  Jacobson and his father, Barry, booted the Rotolo firm and claimed there was no settlement.

The school board contended that the deal was binding, but ALJ Jeff Masin disagreed, because the board had not yet approved it.

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.”

Jacobson took the position that, by sending the email, Dubin had waived any privilege against being deposed, but Appellate Division Judges Joseph Yannotti and George Leone disagreed, noting it was inadvertently sent.

E. Carr Cornog III, of the Rotolo firm, who also worked on Jacobson’s case, says the judges ruled correctly about the impact of deposing judges about settlement discussions.

The firm plans to reinstate the fee claim, he says.

Jacobson’s malpractice lawyer, Susan Schleck Kleiner of Metuchen, did not return a call.

While the appeal was pending, Futey decided that Jacobson failed to prove his claims and dismissed them. He was upheld by Division on Civil Rights Director Craig Sashihara on Nov. 27.

Attorney General’s Office spokesman Paul Loriquet notes that the court found that settlement negotiations are a judicial function and that deposition of Dubin would undermine the integrity of the process.

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