NY Attorney Gets Her Day in Court
Over Firing by Disciplinary Committee

By Daniel Wise
New York Law Journal
New York Lawyer
October 21, 2009

In low-key opening statements to a Southern District jury yesterday, the two sides presented starkly different portrayals of the reason an attorney with the Appellate Division, First Department, disciplinary committee was fired in 2007.

John Lovett, the lawyer for the fired lawyer, Christine C. Anderson, told the six-member jury that his client had been fired in retaliation for exercising her First Amendment rights in complaining to court officials that well-connected attorneys received preferential treatment and that the committee had "whitewashed" certain cases.

But Assistant Attorney General Wesley E. Bauman insisted the firing had nothing to do with Ms. Anderson's exercise of her free speech rights but instead was a result of her "unprofessional conduct and refusal to have any contact" with her supervisor.

The one thing both sides agreed on was that Ms. Anderson and Sherry K. Cohen, who became the committee's first deputy counsel in 2003, had an exceptionally tense and difficult relationship.

In his half-hour opening, Mr. Lovett, of Lovett & Bellantoni in Hawthorne, N.Y., described Ms. Anderson, now 64, as having a good relationship with her immediate supervisor from the time she began work at the committee in 2001 until August 2005.

Although Ms. Cohen became deputy counsel in spring 2003, Mr. Lovett said that Ms. Anderson had the same immediate supervisor until Ms. Cohen demanded that Ms. Anderson "sanitize" the factual findings in one of her cases where she had concluded that an attorney had lied to committee personnel.

Mr. Lovett said that a finding that an attorney under investigation had lied to the committee was "a giant no-no."

In August 2005, he said, Ms. Cohen told Ms. Anderson that she wanted her to drop her conclusion that the lawyer, only identified as R.N., had been untruthful.

When Ms. Anderson objected to taking out the finding that the lawyer had made "misrepresentations" as a move that "would dictate the outcome of the investigation," Mr. Lovett said, Ms. Cohen took over the file and rewrote the recommendation herself. Both Ms. Cohen and Ms. Anderson agreed that the attorney should be privately admonished.

After taking control of the R.N. case, Mr. Lovett said, Ms. Cohen took over as Ms. Anderson's immediate supervisor and "began micromanaging and harassing her."

Mr. Lovett said that in subsequent conversations with Thomas J. Cahill, then the committee's chief counsel, and other court officials, Ms. Anderson complained that certain lawyers got "the soft touch, another form of corruption" at the Departmental Disciplinary Committee, where "who you know and what your connections are" influenced investigations.

Mr. Lovett said that Ms. Anderson had complained to Mr. Cahill that prosecutors and lawyers with connections to members of the committee's policy committee or with lawyers who had previously worked for the committee had received preferential treatment.

'Detail-Oriented' Supervision

Mr. Bauman laid out a different timeline, saying that Ms. Cohen took over as Ms. Anderson's direct supervisor shortly after becoming deputy counsel in 2003, and brought a more "detail-oriented" style of supervision. She became directly involved with staff attorneys' cases to provide them "with her 15 years of experience and best judgment," Mr. Bauman said during his 15-minute opening.

Mr. Bauman said Ms. Anderson "resented" the more-detailed approach, but "there were many opportunities to repair the supervisory relationship."

Instead, he said, Ms. Anderson demanded that she have no direct contact with Ms. Cohen. Confronted with Ms. Anderson's refusal "to repair the continuing hostility," Mr. Bauman said, the "court reluctantly fired" Ms. Anderson in June 2007.

Mr. Lovett countered that the reason Ms. Anderson demanded that she have no direct contact with Ms. Cohen was that she was afraid of the deputy clerk, primarily as a result of an incident in August 2005.

He said that was when Ms. Cohen had entered Ms. Anderson's office to speak to her, but Ms. Anderson said she had to leave to meet a complainant in a conference room.

When Ms. Anderson sought to leave the office, Mr. Lovett said, Ms. Cohen leaned against the door to prevent the lawyer from exiting. As Ms. Anderson reached for the door knob, Ms. Cohen grabbed her hand and scratched her, he said.

Mr. Bauman referred to the incident briefly in his own opening, saying, "It was not an assault."

Former Westchester County Court Judge Rory J. Bellantoni is also representing Ms. Anderson.

In addition to the court system, Mr. Bauman and Assistant Attorney General Lee Alderstein are representing three individual defendants: the First Department's deputy clerk, David Spokony, Mr. Cahill and Ms. Cohen. All three were at the defense table yesterday.

John McConnell, the clerk of the First Department, and Roy L. Reardon, the chairman of the 64-member disciplinary committee, attended yesterday's session as spectators.

The trial, which is expected to last about one week, is being presided over by Southern District Judge Shira A. Scheindlin.

Judge Scheindlin denied the defendants' motion for summary judgment in April. She ruled that Ms. Anderson could proceed with her $10 million claim for compensatory and punitive damages on the ground that the committee had retaliated against her for expressing her view that it had whitewashed as many as nine cases.

In her opinion, Judge Scheindlin noted that a "host" of e-mails had made evident Ms. Anderson's "hostility" toward Ms. Cohen and her "refusal to cooperate" with her supervisor.

But Judge Scheindlin also noted that "a reasonable jury could find that the defendants refused to remove [Ms.] Cohen as [Ms.] Anderson's supervisor so they could use [Ms.] Anderson's inevitable resistance to [Ms.] Cohen's continuing supervision as pretext for firing her."

After the opening statements, Ms. Anderson took the stand. Her cross examination is set to continue this morning.

About 10 people dissatisfied with the way the disciplinary committee had handled their complaints against their attorneys also attended yesterday's session

Attorney's Whistleblower Suit Against Former Firm Reinstated

By Mary Pat Gallagher
New Jersey Law Journal
New York Lawyer
|August 24, 2009

A lawyer who claims her firm fired her for threatening to report a violation of ethics rules governing civil case settlements can sue under New Jersey's whistleblower law, a state appeals court says.

The Appellate Division held on Thursday that a trial judge erred in throwing out the claim based on his view that the alleged misconduct was not covered by the Conscientious Employee Protection Act and because plaintiff Melissa Morris did not follow through on her threat to go to authorities.

The ruling, in Morris v. Greitzer and Locks of New Jersey, allows Morris to pursue her CEPA claim against what is now the Locks Law Firm of Philadelphia over its handling of an aggregate settlement of suits over fen-phen diet drugs.

When Morris joined the firm's Cherry Hill, N.J., office as an associate in March 2000, bringing nine case files with her, partner Gene Locks allegedly promised her 50 percent of all fees earned on any of her cases that were completed by Dec. 31, 2000. That beat the offer she got from her old firm, Ominsky & Messa in Philadelphia: a 30 percent cut of fees on any cases she left behind, upped to 40 percent in diet-drug cases.

Morris' dispute with the Locks firm concerns the only one of her cases not already pending in a Pennsylvania court - a fen-phen claim by her neighbor Alan Weber over the death of his wife. After Morris' move, Weber signed a new agreement with the Locks firm, opted out of a diet-drug class action and sued in Middlesex County Superior Court.

Morris alleges that in September 2000, James Pettit, managing partner of the Cherry Hill office, told her he settled Weber's case for more than four times the amount Weber authorized but he refused to tell her how much. Around the same time, Pettit said he feared some diet-drug clients might not accept the amount allocated to them so he wanted Weber to sign a release stating consideration of only one dollar, Morris claims.

She also alleges that Pettit said he was withholding 10 percent of each diet-drug client's settlement in case anyone objected to the amount they got. Morris understood this to mean that Pettit would use the withheld amounts to give more money to the ones who were not happy, and when she asked Pettit if this was ethical, he allegedly told her, "Melissa, I am doing the best I can."

Morris claims that when she raised the issue of her 50 percent share of fees for the Weber case on Oct. 2, 2000, Pettit denied the existence of the fee agreement. The next day, he told her that he had made a mistake about the size of the Weber settlement - that it was actually only three times the authorized amount.

That created a problem for Morris, who had already given Weber the good news about the higher figure. Weber, who wanted outside proof of the amount of his settlement, met with Pettit and afterwards told Morris he feared he would lose the settlement altogether if he challenged the firm, she alleges.

Morris continued to assert her right to the fees and on Nov. 14, 2000, was told to send her case files to the firm's Philadelphia office, which she alleges violated an agreement that she would work on her own cases. Interpreting the demand as a first step in firing her, she did not comply.

Gene Locks came to Cherry Hill later that month and demanded that Morris turn over the files at once or face termination. Morris says she questioned the propriety of the manner in which the diet-drug cases were settled and the reduction in Weber's settlement and said she would report them.

She then removed files and the firm fired her on Nov. 28, 2000, allegedly for theft of them.

Morris sued the firm, Locks and Pettit in Camden County on June 4, 2001, for violation of CEPA, breach of contract, intentional infliction of emotional distress and detrimental reliance.

Superior Court Judge Charles Little dismissed all of Morris' claims except breach of contract. By the time of the bench trial, which ran from December 2006 to February 2007, the Locks firm had a counterclaim against her and against the Ominsky firm, which in turn had claims against Morris and the Locks firm. The trial outcome was a net award of $12,406 for Greitzer & Locks against Morris, $11,543 for the Ominsky firm against Greitzer & Locks and $32,057 for the Ominsky firm against Morris.

On Thursday, Appellate Division judges Mary Catherine Cuff, Clarkson Fisher Jr. and Christine Miniman said Little was wrong in dismissing the CEPA claim. The statute clearly applied because Rule of Professional Conduct 1.8(g), which requires informed client consent for an aggregate settlement, "closely relates" to the complained-of conduct, and RPC 7.1(a), which prohibits false and misleading communications, might also apply, they wrote per curiam.

The judges also found CEPA did not require Morris to go to the Office of Attorney Ethics. The "'threat' of reporting the activity to a public body is all the statute requires," they wrote.

Because Little struck the jury demand over the Ominsky firm's objection and all the claims were "inextricably intertwined," the appeals court required a new trial on all claims.

Morris' lawyer, Carl Poplar of Cherry Hill, says the case highlights concerns about the use of aggregate settlement in mass tort cases.

The opinion mentions no dollar figure for Weber's settlement or Morris' fee claim because Little granted a motion by the Locks firm to seal that information, over his objection, Poplar says.

Not returning calls for comment were Pettit, Locks, Kimberly Sutton, of Obermayer Rebmann Maxwell & Hippel in Cherry Hill, who represents the Ominsky firm, now Ominsky & Ominsky, and Joseph Kenney, of Ballard Spahr Andrews & Ingersoll in Voorhees, N.J., the trial lawyer for the Locks defendants. Pettit argued the appeal.

Morris no longer practices law and has returned to her previous career, nursing.

NY Lawyer Fired From Attorney Watchdog
 Job Can Sue State for Retaliation

By Daniel Wise
New York Law Journal
April 30, 2009

An attorney who was fired after working six years as a staff lawyer at the First Department's disciplinary committee may proceed with a $10 million damage lawsuit that she was discharged in retaliation for claiming her superiors were "whitewashing" cases, a Southern District judge ruled Monday.

However, the judge, Shira A. Scheindlin, threw out the attorney's claim that she had been fired because she is black, in ruling on a summary judgment motion brought by the Office of Court Administration.

Christine C. Anderson contended that her June 2007 firing was in retaliation for complaints she made to her superiors at the disciplinary committee that at least nine cases had been handled too leniently because the lawyers being investigated were politically connected or were represented by attorneys who had previously worked for the committee.

Ms. Anderson, who was born in Jamaica, also claimed the committee had discriminated against her on the basis of race, color and national origin.

The disciplinary committee operates under the aegis of the Appellate Division, First Department, and Ms. Anderson sued the OCA; Thomas J. Cahill, the committee's chief counsel during the years Ms. Anderson was employed there; Sherry K. Cohen, who became deputy chief counsel and Ms. Anderson's supervisor in 2003; and David Spokoney, the First Department's deputy clerk. With the exception of Mr. Cahill, who resigned in 2007 after 10 years in the post, the other individual defendants remain at their jobs.

The First Department'sdisciplinary committee polices the conduct of attorneys practicing in Manhattan and the Bronx.

In allowing Ms. Anderson to proceed with her retaliation claim, Judge Scheindlin found that her contention that the committee had "whitewashed" as many as nine cases touched upon a subject of public concern and was protected under the First Amendment.

A jury will have to determine whether the defendants fired Ms. Anderson because of the concerns she raised or because she had been insubordinate, as the defendants contend, Justice Scheindlin concluded in Anderson v. State of New York, 07 Civ. 9599.

Judge Scheindlin noted that Ms. Anderson in a "host" of e-mails had made "evident" her "hostility toward" and "refusal to cooperate" with Ms. Cohen, her supervisor.

Nonetheless, Judge Scheindlin ruled that "a reasonable jury could find that the defendants refused to remove [Ms.] Cohen as [Ms.] Anderson's supervisor so they could use [Ms.] Anderson's inevitable resistance to [Ms.] Cohen's continuing supervision as a pretext for firing her."

Precedent Distinguished

In concluding that Ms. Anderson's complaints touch upon matters of public concern, Judge Scheindlin rejected OCA's argument that Garcetti v. Ceballos, 547 U.S. 410, a 2006 U.S. Supreme Court precedent, was controlling.

The Attorney General's Office, which represented OCA and the individual defendants, contended that Ms. Anderson's First Amendment claim must be rejected under the authority of Garcetti.

The Supreme Court rejected a First Amendment retaliation claim brought by a deputy district attorney who claimed he was fired because he recommended the dismissal of a case. The \pard softlineprosecutor had urged dismissal because a flawed affidavit was used to obtain a search warrant.

Rather than raising an issue of public concern, Justice Anthony M. Kennedy wrote in a 5-4 ruling in Garcetti that the prosecutor was acting as a public employee with regard to an internal matter when he "fulfill[ed] a responsibility to advise his supervisor about how best to proceed with a pending case."

Judge Scheindlin found Ms. Anderson's case to be "patently distinguishable" from Garcetti.

"The prosecutor in Garcetti spoke about a single case pending in his office," she wrote, while "Ms. Anderson spoke out about systemic problems at the [disciplinary committee], thereby making her speech protected."

"Where a public employee's speech concerns a government agency's breach of trust, as it does here," she wrote, "the speech relates to more than a mere personal grievance and therefore falls outside Garcetti's restrictions."

Discrimination Claims Fail

Judge Scheindlin found that none of the three remarks that Ms. Anderson alleged Ms. Cohen made had any bearing on her bias claims.

One alleged remark - that the homeless are "smelly" - did not reflect upon a group protected by federal civil rights laws, the judge ruled.

The other two alleged comments - that there are too many blacks in the subway and blacks were moving near Ms. Cohen's vacation home - were not "directed" at Ms. Anderson, "unrelated to her discharge" and allegedly uttered about one year before her firing, Judge Scheindlin wrote.

Ms. Anderson also presented deposition testimony from three present or former minority employees who had expressed views that Ms. Cohen was biased.
Two of those witnesses, one of whom was a lawyer, expressed views that reflected subjective beliefs that are "devoid of any factual circumstances linking [Ms.] Cohen to any discriminatory conduct," Judge Scheindlin found.

The testimony of the third minority witness, Kenneth Van Lew, an investigator who left the office at the time of his deposition, provided "concrete instances in which he believes he was treated less favorably by [Ms.] Cohen than similarly situated Caucasian employees," Judge Scheindlin wrote.

But even though Mr. Van Lew's testimony provided "some credible evidence" of discrimination, the bias-based claims had to be dismissed, Judge Scheindlin concluded, because "there is simply no evidence" that any alleged bias had tainted the decision of the ultimate deciding authority, the First Department's justices serving upon the court's Departmental Disciplinary Liaison Committee.

The state defendants were represented by Assistant Attorneys General Lee A. Alderstein and Wesley E. Bauman. The Attorney General's Office did not respond to a request for comment.

Ms. Anderson was represented by John A. Beranbaum of Beranbaum Menken Ben-Asher & Bierman.

Attorney Disciplinary Body Immune
From Claims of "Whitewashing," Judge Finds

By Daniel Wise
New York Law Journal
New York Lawyer
August 12, 2008

Southern District Judge Shira Scheindlin last week dismissed six lawsuits filed by pro se litigants claiming the disciplinary committee of the Appellate Division, First Department, had "whitewashed" complaints against lawyers.

Judge Scheindlin had previously accepted all six cases as related to a $10-million damages action brought against the committee by a lawyer who claimed she was fired after working for the committee for six years after she alleged her superiors had a "practice" of "whitewashing" complaints against "certain select attorneys."

Judge Scheindlin dismissed the six related cases brought by litigants with complaints against their lawyers because the committee, and lawyers working for it, are entitled to immunity.

Discovery in the lawsuit brought by Christine Anderson, the lawyer who was fired in June 2007, is scheduled to be completed by the end of the month. With last week's ruling in Esposito v. State of New York, 07 Civ. 11612, all the cases that had been accepted as related to Ms. Anderson's have been dismissed.

The First Department's disciplinary committee handles ethics complaints filed against lawyers practicing in Manhattan and the Bronx.

Southern District Judge Shira Scheindlin last week dismissed six lawsuits filed by pro se litigants claiming the disciplinary committee of the Appellate Division, First Department, had "whitewashed" complaints against lawyers.

Judge Scheindlin had previously accepted all six cases as related to a $10-million damages action brought against the committee by a lawyer who claimed she was fired after working for the committee for six years after she alleged her superiors had a "practice" of "whitewashing" complaints against "certain select attorneys."

Judge Scheindlin dismissed the six related cases brought by litigants with complaints against their lawyers because the committee, and lawyers working for it, are entitled to immunity.

Discovery in the lawsuit brought by Christine Anderson, the lawyer who was fired in June 2007, is scheduled to be completed by the end of the month. With last week's ruling in Esposito v. State of New York, 07 Civ. 11612, all the cases that had been accepted as related to Ms. Anderson's have been dismissed.

The First Department's disciplinary committee handles ethics complaints filed against lawyers practicing in Manhattan and the Bronx.

heir situation that the decision should consider this when awarding damages.

                           New York State Denies
       "Whitewashing" Ethics Complaints Against Attorneys

By Daniel Wise
New York Lawyer
New York Law Journal
February 21, 2008

New York state last week denied charges that top officials at the disciplinary committee overseeing lawyers practicing in Manhattan and the Bronx had "whitewashed" complaints against "certain select" attorneys.

NY Lawyer Suing Attorney Watchdog Group
Fires Her Lawyer, Hires Her Daughter

By Daniel Wise
New York Law Journal
New York Lawyer
December 19, 2007

Christine C. Anderson, a former staff attorney at the First Department Disciplinary Committee who filed a federal lawsuit in October seeking $10 million in damages against her superiors, has discharged her attorney, Frederick K. Brewington of Hempstead.

In a Dec. 12 letter, Mr. Brewington advised Southern District Judge Shira A. Scheindlin, who is presiding over the case, Anderson v. State of New York, 07-cv-9599, that Ms. Anderson had relieved him as her counsel because of "irreconcilable differences."

Mr. Brewington declined to elaborate as did Ms. Anderson's daughter, Tembani Selepi Xaba, who said she is stepping in temporarily as counsel for her mother while she seeks a new lawyer.

Mr. Brewington filed an amended complaint on Nov. 7, and Ms. Xaba said that Judge Scheindlin had set a Jan. 2 deadline for filing a second amended complaint at a scheduling conference on Dec. 12. The state must submit its response to the amended complaint by Feb. 14.

In the lawsuit, Ms. Anderson charges she was fired in June, after working for the committee for six years, because she had complained that her superiors were "whitewashing" complaints against "certain select" lawyers. (See "Ethics Complaints Against Some NY Lawyers Whitewashed, Attorney Alleges").

Complaints Against 'Select Attorneys'
Whitewashed, N.Y. Lawsuit Alleges

Daniel Wise
New York Law Journal
October 30, 2007

A former staff attorney at the 1st Department Disciplinary Committee has filed a federal lawsuit charging she was fired in June in retaliation for complaining that her superiors had engaged in a "pattern and practice of whitewashing and routinely dismissing complaints against certain select attorneys."

Christine C. Anderson, who had worked for six years at the disciplinary committee, seeks $10 million in damages, claiming retaliation for the exercise of her First Amendment rights and discrimination because she is of Jamaican origin and black.

Anderson also asks for the appointment of a federal monitor to oversee operation of the disciplinary committee.

David Bookstaver, a spokesman for the Office of Court Administration, said it would be "inappropriate" to comment on pending litigation.

Anderson alleged two instances in which her recommendations had been overridden or changed by her superiors at the committee.

In 2005, Anderson charged in her complaint, she discovered that the chief counsel of the disciplinary committee, Thomas J. Cahill, and Sherry K. Cohen, its first deputy counsel, were "apparently engaged in a 'numbers game' and practice" of "selectively" dismissing complaints against attorneys for their "own personal and political reasons."

A possible second, or alternative reason for the dismissals, the complaint stated, was that the prosecutions of the complaints would be "burdensome or otherwise 'unworthy' of prosecution."

Anderson also charged that in one incident, in July 2006, Cohen physically blocked her from leaving her office and, in so doing, had dug her nails into the plaintiff's hand, causing scratches.

Cahill declined to comment on the allegations; Cohen did not return a call for comment.

In addition to suing Cahill and Cohen, Anderson named as defendants Justice John T. Buckley, who was presiding justice of the Appellate Division, 1st Department, until May; former Clerk of Court Catherine O'Hagan Wolfe, who resigned in April to become clerk of the 2nd U.S. Circuit Court of Appeals; and the Office of Court Administration.

The case, Anderson v. State of New York, was filed on Friday in the Southern District of New York, according to Anderson's attorney, Frederick K. Brewington of Hempstead, N.Y.

Cahill's retirement was announced in July, though he is remaining as chief counsel until a successor is chosen.

The first instance of a "whitewash" alleged in Anderson's complaint occurred "in or about 2003" in "a highly sensitive investigation," which had uncovered "overwhelming concrete evidence of misconduct" by an attorney, Anderson alleged.

The matter was dropped despite her recommendation that a formal complaint be filed against the lawyer, Anderson alleged.

She also charged that a large file she had amassed containing "indisputable evidence of misconduct" had been "gutted."

The second instance in which Anderson's handling of a case was overridden occurred about two years later, she alleged.

In that case, she stated, Cahill had asked her to write an introductory paragraph to the policy committee, explaining her recommendation that an attorney be given a non-public admonition rather than be the subject of a formal proceeding that could lead to a public sanction.

Anderson explained in her complaint, that, although the results of a "complex investigation" of the attorney "argued strongly in favor of charges," there was "lack of actual proof of a conversion." She also stated there had been an "initial lack of cooperation" from the client complaining against the lawyer.

Anderson stated that she wrote an introductory paragraph explaining the gravity of the attorney's conduct, but that Cohen had rewritten it, "deleting facts" Anderson had uncovered during her investigation and conclusions she had reached.

Anderson quoted Cohen as saying the reason she had rewritten the paragraph was to avoid having the policy committee send the matter back to staff for the preparation of a formal complaint.

Anderson further charged that Cohen had done this because "she had a prior working relationship" with the attorney for the lawyer under investigation and sought to avoid having his client formally charged "as a favor."

The complaint did not identify the two lawyers who were the subjects of the proceedings cited by Anderson. Brewington said in an interview that he would not name them "at this time."

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