Marcus Slips By—For Now
by marcia chambers | Mar 4, 2013 8:30 am
Posted to: State
Will Attorney Shelley Marcus (pictured) be called as a witness in Branford’s malpractice case against the Marcus Law Firm, her law firm and the town’s former counsel?
This was one of the many pointed questions posed by Republican state Rep. Rosa Rebimbas of Naugatuck as Marcus appeared before the legislature’s Judiciary Committee Friday to determine whether Marcus is qualified to be a Superior Court judge.
Governor Dannel P. Malloy recommended Marcus, 61, and 13 other nominees to positions on the Superior Court along with one nominee to the appellate court late in January. All appeared Friday at for their confirmation hearing at the Legislative Office Building.
All were approved unanimously except for Marcus, who faced repeated questions about her qualifications. She did eventually win a 28-12 vote; her nomination, along with the other nominations, now go before the full General Assembly for a vote.
Central to the questioning Friday were her role in advising women in the recent federal “gifting table” case and her firm’s role in a malpractice case brought by the town of Branford. The General Assembly will soon decide on the judicial appointments.
In the end, there was no certainty that Ms. Marcus would or would not be called to testify in a still pending malpractice case filed in 2008 against the Marcus Law firm and one of its litigators, David Doyle. A trial date is set for June 4 in New Haven Superior Court unless a summary judgment motion is allowed to advance. (Click here to read the story. )
The 90-minute questioning Friday of Marcus by legislators from both sides of the aisle was tense and demanding. Marcus assured the committee she will not be called in the malpractice case because she had little to do with it, but some legislators were leery.
Marcus sat in the audience taking notes as the 28-12 vote was tallied. When it was over she smiled as various legislators congratulated her.
Before the final vote, one legislator made the effort to put a hold on her nomination until additional information could be gathered.
Republican state Rep. Arthur J. O’Neill urged postponement in order for the committee to get “fuller satisfactory answers to some of the questions” and to some of “the answers” Marcus gave. O’Neill was particularly concerned that Ms. Marcus wrote in her application that she served as the client, or as “a surrogate” for Cheryl Morris, a former first selectman, at an crucial court mediation in the Tabor land case in February 2007. It is this case that later led to the town’s malpractice suit.
Besides the malpractice case, Shelley Marcus was asked about her role and her father Ed Marcus’s role in the federal gifting tables fraud case. Both father and daughter became prosecution witnesses at the high publicity federal trial of two Guilford women charged with running a gifting table pyramid scheme. They were convicted in federal court in Hartford in February and await sentencing. Read about that here.
Marcus comes to the nomination with political juice. Ed Marcus, 85, is the former state chairman of the Democratic Town Committee and a political kingmaker in his own right. At one point in her career, Shelley Marcus acted as counsel for the House Democrats. Ed Marcus was an early supporter of Gov. Malloy in his quest for the governorship.
Judiciary Co-Chair Sen. Eric Coleman rejected postponing the Marcus nomination. He said he thought Ms. Marcus answered gifting table questions well. “I thought the nominee answered those questions and I thought quite effectively,” he told his colleagues before the vote. Postponement went down to defeat by a vote of 26-14.
SENATOR MEYER VOTES NO
During her questioning, state Sen. Ed Meyer (pictured) , who is not shy about speaking his mind, asked no questions of Marcus, telling the Eagle afterwards that his colleagues asked the questions he would have asked. But he was the first to speak against her nomination. Meyer represents the 12th Senate District, which includes Branford and five other towns.
“Colleagues, it has been my pleasure in eight years I have been on this committee to advocate strongly for judicial nominees from my Senate district. I can’t say that about this particular nominee,” Meyer said. “The governor put out 15 nominees today; we heard tremendous quality, tremendous substance and achievement. I don’t think this nominee has got that standard or achievement that the governor’s other recommendations carry. So many we heard from are partners in firms, they are the leaders of the bar, they are the leaders in the community.”
Meyer said the professional record that she will carry to the bench if she is approved “will be muddied by a serious malpractice action by one of her major clients, the town of Branford. It will be muddied by a horrific pyramid scheme in which she was involved. For all those reasons I am urging that the committee look carefully at your vote and let’s put someone on the bench of great quality.”
While Marcus said she had no involvement in the Tabor malpractice case, she played a role in settlement talks and trial talks on the Tabor case at a number of public meetings in 2007. James Bergenn, the lead attorney for the developers in the Tabor trial, and the attorney who made a presentation to the RTM seeking settlement in 2007, attended the Shelley Marcus confirmation hearing Friday. It is not known why.
SHELLEY MARCUS ACTS AS FIRST SELECTMAN
Rep. Rebimbas and Rep. O’Neill (pictured) were concerned about the role Ms. Marcus said she played at a two-day mediation session before Judge Jonathan E. Silbert in 2007. Judge Silbert ultimately recommended a settlement that would have placed 275 condos on the 77-acres on the Tabor site.
Rep. Rebimbas and Rep. O’Neill, both Republicans, said they were concerned about a statement Marcus filed with the Judiciary Committee on Feb. 5—after the governor announced her appointment.
In her written statement Marcus said: “A mediation with Judge Silbert was held to attempt to settle the matters which I attended in the capacity of the client and not the attorney; however, the RTM of the town of Branford had absolutely no interest in the settlement proposal that arose from the mediation session and the cases were scheduled for trial.” The RTM is the Representative Town Meeting, the town’s legislative body. The deal was rejected.
During their tenure as attorneys for the town, Mrs. Morris usually deferred to the attorneys at the Marcus Law Firm on virtually every legal matter. She would say at public meetings she was not versed in the law and refuse to answer questions from RTM members or the public regarding town policy, pointedly asking Doyle or Marcus to answer questions addressed to her.
Rep O’Neill asked Marcus to go back to her role in the Tabor mediation. “You said you were a surrogate for the client. So did you have any kind of authority to settle the matter on behalf of the client?
Marcus: “No, sir. It was really a matter of putting my two cents in. No, nothing was settled on that day.”
“Did Attorney Doyle ask you to do this?”
Marcus: “I am not sure. The first selectwoman asked me to do it.”
O’Neill: “The chief client asked you to function in this way.”
O’Neill: “Why was it that she was not available? “
Marcus: “I just don’t recall.”
O’Neill: “This was a pretty big case for the town of Branford?
O’Neill: “Does Branford have a deputy first selectman?”
Marcus: “It has a second and third selectman.”
O’Neill: “ I am trying to get an understanding as to why a lawyer in the law firm that is already representing her is being called upon to sort of step out of the lawyer role and to step into the client role as guardian ad litem or something on the part of the town of Branford?”
Marcus: “All I can say was that the first selectwoman asked me to do it. My participation was minimal that day. The attorneys brought back the settlement proposal to the legislative body of the town.”
Rebimbas went a step further, telling Ms. Marcus she thought it was conflict of interest to serve as both attorney for the town and as the town’s top client.
“Again I am just a little concerned and puzzled by your response …. I can understand representing your client as to what the client would negotiate for, as to what the client’s position is, but I am still not clear how you were there as an employee at a law firm but at the same time stepping in as a client. Am I missing something? The terms being used are a little concerning to me. Because as I understand and to the best of my knowledge, it is questionable as to whether that is allowable or ethical.”
Marcus explained that she did not participate in the mediation. “Maybe that is the wrong term. I was asked to give my opinion as to the perspective of the various players in the town.”
Later, Rebimbas asked Marcus if witness lists for the upcoming malpractice case had been disclosed. She said she did not know.
While Marcus distanced herself from the Tabor lawsuits, she was involved in the legal events that led up to the Tabor trial in 2007, some of which evoked passionate debate at public meetings.
In fact both Marcus and Doyle debriefed the Board of Selectmen for about an hour on the Tabor mediation after the meeting with Judge Silbert. The debriefing took place in executive session. Click here to read the 2007 story.
At last week’s Democratic Town Committee meeting, on the day before her judicial hearing, RTM member David Baker, now the Democratic majority leader, remembered a conversation he had with Marcus at the RTM after the RTM rejected the proposed judicial settlement for Tabor.
“For me it is very real,” he told the audience. “At the RTM meeting we objected to the Tabor settlement, after the Marcus Law Firm made a presentation which was favorable to settlement, which is what they wanted to do. Afterwards I went to her and I said we need a vigorous, a very vigorous defense of the town. Do you plan to do that? And she looked at me in the eye and said. ‘That’s our job.’ It included the experts being able to testify. That was our assumption. She looked me in the eye and said we are going to do that, knowing damn well they were not. So I question her judgment.”
The RTM was deeply concerned about the Marcus Law Firm’s ability to take the Tabor case to trial. Shelley Marcus was in the room when the RTM and an outside attorney took the occasion to question the firm’s ability to represent the town. Clck here to read the story.
THE MARCUSES AND THE GIFTING TABLES
Initially Gov. Malloy said he knew nothing about Marcus as a witness in the gifting table case and neither did the Judicial Selection Commission, which pre-approves prospective judicial nominees. Marcus explained in court that neither she nor her father thought they would be witnesses in the federal case. She told one of the legislators she later discussed this unexpected development with the governor’s office.
The Marcuses represented about 20 gifting table women in a civil case before the state attorney general’s office. “We did not know we would be called or that anything we had to say would be particularly helpful,” Shelley Marcus told the committee Friday. For one thing conversations between client and attorney are privileged. She said one of the defendants tried unsuccessfully to have the waiver of that privilege withdrawn.
Marcus observed she had disclosed her firm’s gifting table representation with the Judicial Selection Commission but that was for her 2011 application for a judgeship. This was before the case against three women went over to the U.S. Attorney’s office for criminal prosecution. She viewed her firm’s civil case as a good example of the work the Marcus Law firm does, she said.
Marcus sought to set the record straight in the gifting table case. She said she and her father did not expect to be called as witnesses in the federal trial because typically attorney privilege prevents that.
She denied rewriting the gifting table handbook. She said she read the handbook “with a view toward what their liability might be in the attorney general’s investigation. She said she made “hand written notes .. about what I thought was terrible about all of this and what was likely to increase their likelihood of liability.” She said one of the gifting table defendants said in a deposition that “other members of her gifting table actually made those changes to the guidelines themselves.”
Still hanging in the air at the end of the day was what precisely Marcus told her gifting table clients about whether the tables were legal or not. Several legislators asked her about it. “Not using those words, but in so many words, yes. I told them it was most likely a violation of the statute,” she said, not explaining which statute she meant.
While Ed Marcus now says the tables were illegal, back in March 2010 he told the New Haven Register they were legal. He has since changed his mind, he said.
What concerned Rep. Richard A. Smith, a Republican from Danbury, was how Marcus can “avoid the appearance of impropriety. I am wondering how you get over this hurdle. Help me with that,” he asked.
Shelley Marcus tried: “I don’t believe … an attorney trying to do her best for clients who walked into her office and were in a tough situation. I defended them to the best of our ability. I was a witness for the prosecution in a criminal trial. I was not a party.”
Rep. Cecilia Buck-Taylor of New Milford asked if there were other federal or state inquires in the future and Marcus said: “The federal government said there might be other folks subject to [charges].”
Buck-Taylor, a Republican, asked Ms. Marcus about her quest for a judgeship. “This is your second time you have done the judicial selection process. Is that accurate?
Marcus: “Ah, it was more than that.” Marcus explained that in prior reviews, there was concern about her lack of litigation experience. In her current application she says 1 percent of her litigation over the last five years was before a jury and 99 percent was non-jury, meaning settlement. There was another time when concern was raised about the malpractice suit against her father’s firm, “not against myself but against a person who works in our office and the Marcus Law Firm,” she said.
She said she had not disclosed the malpractice case in her current run for the bench “because I had absolutely no involvement in it.” But after the malpractice case was raised at the gifting tables’ trial she provided additional information on Feb. 5 for the Judiciary Committee about her firm’s role in the case.