The town of Branford has taken the unusual step of suing its former town counsel, The Marcus Law Firm. Ed Marcus, the firm’s top partner, master politician and strategist, has come back swinging.
The town filed the legal malpractice suit earlier this month against the firm as well as the firm’s top litigator, David Doyle. The suit asserts that “negligent and careless” legal representation in the Tabor eminent domain case led to a $12.4 million judgment against the town.
Branford accuses Doyle, the firm’s trial attorney in the Tabor case from 2005 to 2007, of failing to disclose expert witness deadlines set forth in a court order, thereby precluding the town from calling expert environmental and financial witnesses essential to making the town’s case at trial. Click here to read the complaint.
This lawsuit comes against a backdrop of an ongoing political fight between two Democratic factions in Branford; and against continuing fallout from the costly Tabor case.
It is not every day that a law firm gets sued, especially when the moving party is a town. Ed Marcus issued a furious statement aimed at the town for filing the suit. Specifically he targeted the town’s first selectman, Democrat “Unk” DaRos who in the past had targeted Marcus for the lawyer’s actions in the Granite-gate scandal. DaRos regained his job in a three-way race last year riding in part on anti-Marcus sentiment.
In the release Marcus echoed arguments Republican John Opie raised during his unsuccessful campaign in that first selectman race last year. Opie advocated hiring a special counsel to investigate all the lawyering in the Tabor case — beginning with the initial taking of land when Unk DaRos was first selectman in 2003.The firm, led by Ed Marcus for a half century, was a fixture on Whitney Avenue in New Haven for decades until it moved to North Branford last year. Marcus is a 1950 graduate of the Yale Law School and a former State Democratic chair. His close ally, former State Sen. Bruce Morris, is married to Cheryl Morris, the candidate who beat Opie in 2005 and then tapped Marcus to become Branford’s town counsel. (Morris was the person DaRos subsequently unseated in 2007.)
In a prepared statement, Marcus accused DaRos of “playing political hardball using Tabor Drive in a suit without merit against the Marcus Law Firm in a vindictive and malicious fashion. To begin with no one knows what will occur in the appellate process; and the Marcus Law Firm continues to believe that the Town of Branford will succeed on appeal.”
The 11-page complaint was filed in New Haven Superior Court. R.Bartley Halloran of Farmington, a leading trial lawyer in the state,whose specialty is legal malpractice, is representing the town. His complaint says that the Marcus Law Firm and Doyle’s “deviation from the standard of care” had cost the town dearly.
Damages, the court papers say, include the jury’s verdict amounting to $12.4 million when the town lost its case to the developer, New England Estates; the millions more due to the property owners Thomas Santa Barbara, Jr. and Frank Perotti, Jr.; and “the payment of additional attorney’s fees in order to seek reversal of the jury verdict, payment of costs for attorneys for appeals and attorney’s fees for attempting to disclose experts past the deadline and moving for re-argument.”
William H. Clendenden, Jr., the town’s current attorney, put together a team of legal experts to evaluate the town’s situation in the Tabor case. As a result, this is the third lawsuit the town has filed in the last eight months as it attempts to undo the damage the town faces in the fallout from the Tabor case. This lawsuit raises the question of the motives of the town’s former attorneys and whether they acted in the town’s best interests.
Marcus was dubious about the strategy of suing his firm. “The Town if it were really interested in protecting its citizens would want everyone on the same page in the appellate process, and would not be so quick to pull the trigger on suing its former counsel.”
The town has also sued its insurer to find out why it did not pick up legal costs. And it has filed an appeal from the verdict that is expected to be heard by the Connecticut Supreme Court later this year. It is this case that Marcus believes should reflect a united front.
It is the Marcus lawsuit, however, that may well shine light on the inner workings of the lawyering in the Tabor case. This could be accomplished through the discovery process, as the town seeks documents, emails and other material to establish its case. But Marcus gave every indication he would fight such a move. “We are not going to be bullied or intimidated by DaRos and company and we will do whatever is necessary to protect our position in this matter.”
Doyle’s Role
Attorney Doyle, from the Marcus firm, was the point man on the case beginning in early 2006. From the outset he was talking settlement. A settlement would be designed to bring a major condo development to the 77 acre Tabor site — even though all of the town’s major boards, commissions and the Representative Town Meeting (RTM) had rejected that idea.
Doyle signed on off on a proposed settlement agreement he entered into with the developer, New England Estates and its attorney Jim Bergenn on Feb 9, 2007.
But the RTM rejected the settlement proposal
Doyle had told RTM members he would get the best environmental experts he could find to testify at trial. The newly filed legal complaint charges he took no action at all, “failing to obtain, prepare or produce any expert report concerning environmental contamination or advice co-counsel of the court ordered date for said disclosure.”
The RTM believed the town would win at trial. In fact, Doyle told the town’s legislators that he would call experts. Without this promise it is unlikely the RTM would have pressed for a trial.
Environmental contamination fears were the chief reason cited by the town’s leaders when it seized the property by eminent domain. The Tabor parcel abuts the town dump.
Marcus Blames DaRos
Marcus said the Tabor problems date to when DaRos and his town attorney, Penny Bellamy, decided to take the property in 2003.
“The trial transcripts clearly will show that under DaRos’s direction and supervision the Town proceeded to take property without following essential guidelines and engaged in practices designed to mislead and deceive the RTM.” DaRos disputes these assertions, as does Bellamy.
Fast forward to the Spring of 2007, when serious questions were raised about Doyle’s ability to defend the town at trial. Morris hired Updike, Kelly and Spellacy on May 8, 2007 to defend the developer’s case and the firm’s top litigator, Kerry Callahan, took over for Doyle as chief trial counsel. Morris said at the time that Doyle was facing surgery, and that is why she acted to remove him, adding that he had done “an exceptional job.”
As it turned out, the complaint says, Doyle failed to inform Callahan or his firm of a Feb. 9, 2007, phone conversation with all lawyers and the judge that required that the names of all expert witnesses be disclosed by May 30, 2007. Neither Doyle nor the law firm ever made a diary entry about this date, the complaint says. In short, when Callahan was hired on May 8 2007, Doyle and the firm had three weeks to let the new trial lawyers know, either orally or in writing of a court order regarding expert deadline disclosure.
Mrs. Morris also appointed a second law firm, McCarter & English, to represent the town on the valuation of the land case. This firm had the case until Marcus took it over in 2005.
Marcus said in his statement, issued Wednesday, that these two outside law firms “had full access to all files, along with access to the court system and any scheduling orders that could be relevant.Both firms were made aware of the fact that disclosure of experts may have needed to be filed if there were to be expert testimony.”
When Callahan learned during the Tabor trial that Doyle had failed to inform him of the crucial expert witness date, he tried to fix it, recognizing that the town had been placed in a perilous position. (Doyle often attended the trial but he did not sit at the defense table.) Callahan submitted various briefs, seeking to persuade the trial judge, William T. Cremins Jr., to lift the deadline. The judge refused. As a result, the jury heard no testimony from the town’s experts.
Marcus noted that Judge Cremins “rejected the proffered expert testimony because the court considered it irrelevant.” Marcus referred to a Cremins finding that “ the town could not defend itself with information developed after the public hearings for the condemnation.”
The complaint also asserts that Doyle and the Marcus Law Firm breached their fiduciary duty to the town:
“As a fiduciary because of the attorney-client relationship, Defendants Doyle and the Marcus Law Firm had a superior knowledge and skill in the management of the litigation …and owed to the Town a high degree of good faith and undivided loyalty. The town relied upon the Defendant for advice and counsel in the litigation.”
The breach of fiduciary duty, the complaint says, caused the town to suffer monetary damages.
“The legal services they provided deviated from the standard of care of a reasonable competent legal professional engaged in the provision of civil lawsuit defense services in the State of Connecticut,” according to the complaint. Doyle, the complaint says should have been well aware of the Connecticut Rules of Practice, case law and the applicable standard of care.
The complaint says Doyle also failed to obtain, prepare or produce any expert report concerning environmental contamination….” In the end the only expert testimony the jury heard came from the developer’s witnesses.
But Marcus said in his written statement that the outside law firms “chose not to use the experts with whom the Marcus Law Firm was working.”.
Doyle and the Marcus Law Firm continued to advise Callahan and his legal team until at least Nov 1, 2007, shortly before DaRos was elected first selectman again.
During part of that time, and unknown to the town, Doyle had been suspended from the practice of law for failing to pay his $110 annual court fee. He was later re-instated. The lawsuit does not mention this issue.
Marcus observed that in over 50 years of existence his firm has never previously “had any claim made against it.”
“We are not going to be bullied or intimidated by DaRos and company and we will do whatever is necessary to protect our position in this matter,” he declared.
Marcus said that after he successfully defends this “political lawsuit,” he will “unfortunately for the town seek damages against the Town and other parties that may be appropriate, for defamation, slander and the increase that may occur in our professional liability insurance.” He has made similar threats in the past. ###
Good! glad it happened