There are few more sensitive issues in litigation than asking a Judge to recuse him/herself. No Judge believes he bears any bias that would affect his rulings. But, in very rare situations, litigants will have to file the appropriate motion. Do not do it the way Alina Habba did it. Ms. Habba responded to one article in the New York Post that claimed at a mega-law firm, Roberta Kaplan was mentored by Lewis Kaplan. As in Judge Lewis Kaplan. Judge Kaplan was the judge in the defamation lawsuit filed by E. Jean Carroll. And Roberta was Ms. Carroll’s lawyer.
If a litigant believes the Judge has some potential conflict of interest, s/he needs to file a motion before the trial occurs. But, Ms. Habba did not do that. She submitted a letter to Judge Lewis Kaplan after the second trial had concluded. And, to make it worse, she relied solely on the New York Post article. She described the allegations in her letter as, well… as “allegations.” So, she did not even have actual evidence of some mentor relationship, from 30 years ago.
Roberta Kaplan responded within a day threatening to seek sanctions against Habba for lodging frivolous accusations. Indeed, the alleged mentor relationship would have occurred 30 years ago in one of the largest law firms in the country. Even if there was some mentor relationship so long ago, it is unlikely such a relationship creates a conflict of interest today. Every senior lawyer has multiple mentor relationships over the life of a career.
But, in relying on unsourced “allegations” for accusations lodged in court just looks amateurish. Ms. Habba did her client no favors in filing the sort of letter only a brand new lawyer would file. That is especially unwise in Federal court. Sanctions are taken much seriously in Federal court.
There is a saying in litigation. Like the king, if you go after a judge, you better get the judge. That means if you seek recusal and fail, the judge may hold that motion against you. I think this adage applies less so here. Ms. Habba by the end of the trial, had already offended Judge Kaplan about as much as any trial lawyer could. She made more mistakes in her one trial than 50 courtrooms full of brand new lawyers.
See ABA Bar Journal report here.