Judiciary Law 487 in the Major Leagues
Today'sNYLJ article by Andrew Keshner gives the background to a very high level spat between marquee named attorneys Ire Lee Sorkin, Judd Bernstein and Raoul Felder. Was it deceit, or was it just good old bare-knuckled lawyering?
"In two separate rulings, one state and one federal judge declined to punish high-profile attorney Ira Lee Sorkin for his advocacy in a now-dismissed civil racketeering case.
Though Eastern District Judge Arthur Spatt disqualified Sorkin, of Lowenstein Sandler, and later tossed the suit, he stopped short on Jan. 10 of sanctioning Sorkin and plaintiff Annette Lorber, finding their decision to bring the case was not "wholly unreasonable."
A day earlier, Nassau County Supreme Court Justice Jerome Murphy dismissed a related action that alleged Sorkin told "outright lies" about how he came to possess a document subject to the work product privilege between an adversary and the adversary's attorney.
"Was Sorkin's defense of a claim that he had utilized a document shielded by the attorney work product deceit or collusion within the intent of [Judiciary Law] §487? The Court believes not," Murphy wrote in Winston v. Sorkin, 8227-13.
Both rulings mark the latest round for a legal brawl touched off by a July 2012 suit that Lorber brought against her estranged son-in-law, real estate developer Jonathan Winston and others. With the suit dismissed on procedural grounds, Winston countered with a challenge to Sorkin's conduct related to possession of the privileged document and his decision to file the suit for Lorber in the first place.
Winston filed an August 2012 motion saying Sorkin's previous representation of Winston disqualified him from representing Lorber. Two months later, he filed a motion to dismiss or at least disqualify Sorkin, saying the attorney came to possess a document he was not authorized to have.
The document was an incomplete memorandum from Winston's former attorneys to end his probation that was never submitted in the criminal case. Explanations of its contents are either redacted or go without elaboration in court papers.
The original complaint had a single reference to the memo, saying, it "contains false and misleading information, including much of the same false and misleading information alleged herein." The reference was omitted in the amended complaint.
Winston said, to the best of his recollection, he only shared the document with Eve, when their marriage was still strong.
At a conference in front of Spatt, Sorkin said the document "was given to a third party. That third party passed it on to another party and that party gave the document to me in the presence of the first third party."
In a subsequent affidavit, Sorkin said he got a copy of the document by email from the offices of Raoul Felder, who had previously represented Eve in the divorce. In his affidavit, Sorkin said neither Felder nor an associate told him the document was privileged, adding that Felder told him either Eve or her mother gave Felder the document.
Felder said in an affidavit he did not remember the circumstances surrounding receipt of the document, and Eve did not remember ever seeing the document.
In any event, in November 2012, Spatt, sitting in Central Islip, said Sorkin's previous representation made "trial taint" a "clear" possibility. The judge said Sorkin offered "varying accounts" of how he got the document, which was shielded by the work-product privilege. Spatt said use of the document was an "additional" ground to support Sorkin's disqualification (NYLJ, Nov. 27, 2012).
In July 2013, Spatt dismissed Lorber's civil racketeering claim as time barred and refused to rule on Lorber's remaining state law claims.
Within a month of dismissal, Winston asked Spatt to impose sanctions against Sorkin and Lorber for pressing a suit that, he said, was false and they knew, or should have known, was false.
Moreover, he sued Sorkin in Nassau County Supreme Court under Judiciary Law §487, arguing that Sorkin "engaged in deceit with intent to deceive the Court," when he explained how he obtained the draft (NYLJ, July 10, 2013). Sorkin countered he was not deceitful as a matter of law.
The Judiciary Law case is Winston v. Sorkin, Supreme Court, Nassau County.