Risk Update

Judicial Conflicts Allegations — Lawyer Turned Judge, Supreme Court Lawyer Spouse

Posted Dan Bressler

“Albright Spars With Lawyers Over Recusal in IBM’s Patent Lawsuit” —

  • “Judge Alan D. Albright had sharp words Thursday for lawyers for a Swiss tech company who filed a motion to have the West Texas jurist disqualified from a patent infringement case filed by International Business Machines Corp.”
  • “LzLabs and co-defendant Texas Wormhole LLC filed their disqualification motion on Jan. 17, saying Albright must relinquish the case because of past work he did as a lawyer in private practice.”
  • “Specifically, Albright represented Neon Enterprise Software LLC, which was sued by IBM for IP theft more than a decade ago. Neon executives John Moores and Thilo Rockmann went on to found and run LzLabs, according to the complaint, and the two men ‘picked up where they left off, with LzLabs as the ‘new Neon.””
  • “In a hearing on the disqualification motion Thursday, Albright said his past work for Neon would’ve been obvious to LzLabs’ attorneys from the start, given that one of those lawyers, Chris Reynolds, also represented Neon with him.”
  • “He questioned why they waited until after he’d rejected their motions to dismiss, a motion seeking a protective order, and a motion to strike before asking him to recuse.”
  • “Had LzLabs won on the motion, its lawyers ‘would be singing ‘Kumbaya,” but having lost, they wanted a new judge,” Albright said. ‘I cannot tell you how troubled I am by this, regardless of what I do with this motion.'”
  • “Brandon Allen, a partner at Reynolds Frizzell LLP, said the timing was dictated by Albright’s decision to reject LzLabs’ motion to strike, but in the sense that that decision changed the nature of the case. That earlier motion had sought to exclude from the record ‘Neon-related statements’ made by IBM in its pleadings.”
  • “Only after its rejection, Allen argued, was it clear that Albright’s past representation of Neon created an issue under a federal disqualification statute. Allen said LzLabs was taking a ‘pragmatic approach’ by waiting to see if there was a disqualification issue or not.”
  • “IBM’s lawyer, Justin Wilcox of Desmarais LLP, said the delay was ‘completely inexcusable.'”

“At the Supreme Court, Ethics Questions Over a Spouse’s Business Ties” —

  • “After Chief Justice John G. Roberts Jr. joined the Supreme Court, his wife, Jane Sullivan Roberts, gave up her career as a law firm partner to become a high-end legal recruiter in an effort to alleviate potential conflicts of interest. Mrs. Roberts later recalled in an interview that her husband’s job made it ‘awkward to be practicing law in the firm.'”
  • “Now, a former colleague of Mrs. Roberts has raised concerns that her recruiting work poses potential ethics issues for the chief justice. Seeking an inquiry, the ex-colleague has provided records to the Justice Department and Congress indicating Mrs. Roberts has been paid millions of dollars in commissions for placing lawyers at firms — some of which have business before the Supreme Court, according to a letter obtained by The New York Times.”
  • “In his letter last month, Kendal Price, a 66-year-old Boston lawyer, argued that the justices should be required to disclose more information about their spouses’ work. He did not cite specific Supreme Court decisions, but said he was worried that a financial relationship with law firms arguing before the court could affect justices’ impartiality or at least give the appearance of doing so.”
  • “In a statement, a spokeswoman for the Supreme Court, Patricia McCabe, said that all the justices were ‘attentive to ethical constraints’ and complied with financial disclosure laws. The chief justice and his wife had also consulted the code of conduct for federal judges, Ms. McCabe said, including a 2009 advisory opinion that a judge ‘need not recuse merely because’ his or her spouse had worked as a recruiter for a law firm with issues before the court.”
  • “Mrs. Roberts previously said that she handled conflicts on a case-by-case basis, avoiding matters with any connection to her husband’s job and refraining from working with lawyers who had active Supreme Court cases.”