Chief Judge Janet DiFiore accused of ‘potential conflict’
Attorneys cite lack of disclosure from Court of Appeals head about connection to Greenberg Traurig law firm
APR 27, 2021 | REPUBLISHED BY LIT: MAY 1, 2021
ALBANY – On Jan. 5, Chief Judge Janet DiFiore listened to arguments in four mortgage foreclosure cases at the Court of Appeals, including the words of two attorneys from the law firm of Greenberg Traurig.
Six weeks later, DiFiore authored rulings in favor of Greenberg Traurig’s clients, Wells Fargo and Deutsche Bank National Trust Company, in unanimous 7-0 decisions that reversed lower court rulings.
On Tuesday, lawyers for the losing clients said they were unaware of a fact the state’s top judge never divulged: That in her official capacity, DiFiore was a Greenberg Traurig client.
Janet DiFiore, Chief Judge of the Court of Appeals and of the State of New York, was born in 1955 in Mount Vernon, New York.
She graduated from C.W. Post College, Long Island University (B.A. 1977) and from St. John’s University School of Law (J.D. 1981). She was admitted to the Bar of the State of New York in 1982. Chief Judge DiFiore served as an Assistant District Attorney in the Westchester County District Attorney’s Office from 1981-1987, and from 1994-1998 as Chief of the Office’s Narcotics Bureau. From 1987-1993, Chief Judge DiFiore practiced law with the firm of Goodrich & Bendish. In 1998, she was elected a Judge of the Westchester County Court, presiding over criminal and civil matters and sitting by designation in the Family Court, Surrogate’s Court and Supreme Court. She served as a County Court Judge until 2002, when she was elected a Justice of the New York State Supreme Court.
As a Supreme Court Justice, she served as Supervising Judge of the Criminal Courts of the 9th Judicial District. In 2005, Chief Judge DiFiore resigned from the bench and was elected Westchester County District Attorney. She served in this position from 2006-2016. On December 1, 2015, Governor Andrew Cuomo nominated her to the position of Chief Judge of the Court of Appeals and the State of New York. On January 21, 2016, her nomination was confirmed by the New York State Senate.
Judges are required to disclose conflicts in cases in which they hold a personal stake. Judges, for instance, are expected to recuse themselves from cases in which their private attorney would appear before them. The standards become murkier when the potential conflict is because an attorney is representing the judge in an official capacity.
“No one from the Court of Appeals advised us of this potential conflict,” Katherine Sherman, an attorney representing homeowner Donna Ferrato, told the Times Union. Brian Pantaleo, an attorney at Greenberg Traurig, represented Wells Fargo.
“We learned about the representation much later after the decision came down adverse to our client,” Sherman said.
Attorney Justin Pane argued on Jan. 5 on behalf of homeowner Juan Vargas. Patrick Broderick, an attorney at Greenberg Traurig, represented Deutsche Bank.
“Simply put, at the time I made my oral arguments before the Court of Appeals on behalf of Mr. Vargas … I was not informed and was unaware of the fact that Chief Judge DiFiore was being represented, in her official capacity, by Greenberg Traurig — i.e., the firm representing my adversary on the appeal,” Pane told the Times Union.
In an email, Court of Appeals spokesman Gary Spencer said: “The Court of Appeals does not address these matters through ‘disclosures.’ If judges find they have a conflict of interest in a particular case, they exercise a personal recusal and step off of the case. When they are not recused, they do not discuss whether any potential conflicts were considered.”
The potential conflict of interest, first reported Monday by the New York Law Journal, is related to Greenberg Traurig’s representation of DiFiore in an unrelated case in which four appellate justices in Brooklyn and Manhattan sued DiFiore over pandemic-related cuts to the judiciary budget.
The cuts eliminated a program that allowed justices to work for up to six years beyond the state’s mandatory retirement age of 70. The 46 judges impacted statewide sued DiFiore; Lawrence Marks, the state’s chief administrative judge; and the administrative board of the Unified Court System, which includes DiFiore and the four presiding justices of the state’s Appellate Division.
Authored Opinion by Chief Judge Janet DiFiore which involved GT lawyers representing Deutsche Bank National Trust Co.
This raises an obvious question with an answer which LIT could not find:
What was the fee agreement between GT Law and Judge DiFiore when Hank Greenberg represented her?
The case was initially before Long Island-based state Supreme Court Justice Paul J. Baisley Jr., who ruled against DiFiore last year. The chief judge and co-defendants appealed to the Appellate Division’s Third Department in Albany in February. On March 9, the appellate court reversed Baisley’s ruling and sided with the DiFiore, who had been represented by Greenberg Traurig shareholder Henry Greenberg,
Greenberg, a former State Bar Association president, is counsel to the state’s Commission on Judicial Nomination, which screens Court of Appeals finalists. And DiFiore appointed him to chair the Commission to Reimagine the Future of New York’s Courts. In addition, Greenberg chairs the Third Department’s judicial screening committee.
Third Department Presiding Justice Elizabeth Garry, who sits on the administrative board, was not part of the panel that heard DiFiore’s appeal. Two appellate justices from western New York were part of the panel.
Lucian Chalfen, a spokesman for the state Office of Court Administration, told the Times Union that when a private law firm represents a judge in the judge’s official capacity because the state attorney general’s office declined to do so, “there is no obligation for the judge to recuse from hearing an unrelated case in which such private law firm appears on behalf of another client.”
Chalfen said the Appellate Division’s four presiding justices, all represented by Greenberg Traurig in the matter of the judicial cuts, have participated in and decided cases in which the firm’s lawyers appeared for another client.
A spokesperson for Greenberg Traurig declined to comment.
Henry M. “Hank” Greenberg, of Albany, has become the 122nd president of the New York State Bar Association (NYSBA).
Greenberg will serve a one-year term as president. He succeeds Michael Miller, of New York City. Sherry Levin Wallach, of White Plains, will serve her third one-year term as secretary. Domenick Napoletano, of Brooklyn, is treasurer. Scott M. Karson, of Stony Brook, becomes president-elect.
“It is the highest honor of my professional life to be president of an association with such a proud history of serving as the voice of New York’s legal profession,” said Greenberg. “Lawyers are indispensable to the rule of law, administration of justice and ordered liberty. No other profession has a higher or nobler calling.
“Our members throughout the state – and across the globe – look to NYSBA for leadership when performing their vitally important work,” continued Greenberg. “We will not fail them. We will take strong positions, wherever and whenever necessary, and work tirelessly to improve the practice of law and guarantee the vitality of the profession.”
Greenberg said that in the coming days and weeks, NYSBA will announce numerous initiatives focused on a range of legal subjects and public policy issues that merit examination and recommendations for reform.
Greenberg is a shareholder at Greenberg Traurig and concentrates his practice on civil litigation, criminal and civil investigations, and regulatory and administrative law. He is a former counsel to then-New York State Attorney General (now Governor) Andrew M. Cuomo, general counsel for the New York State Department of Health, and a federal prosecutor. Among other government posts, he also served as a law clerk to then-Associate Judge (later Chief Judge) Judith S. Kaye of the New York Court of Appeals.
Previously, he served in NYSBA’s House of Delegates as vice-president of the Third Judicial District, and chaired the Committee on the New York State Constitution, the Committee on Court Structure and Operations, the Legislative Policy Committee, the Steven C. Krane Special Committee on Law School Loan Assistance for Public Interest, and the Committee on Attorneys in Public Service. He chairs the New York State Third Department Judicial Screening Committee, serves on the statewide Judicial Screening Committee, and is counsel to the New York State Commission on Judicial Nomination, which nominates New York’s Court of Appeals judges.
He is a vice chair of the Historical Society of the New York Courts, a life fellow of the New York Bar Foundation, a fellow of the American Bar Foundation, and a member of the New York State Judicial Institute on Professionalism in the Law and the Advisory Group of the New York State and Federal Judicial Council.
A frequent lecturer, Greenberg has been published numerous times on a wide range of legal subjects. He is a co-editor of the book Judith S. Kaye in Her Own Words: Reflections on Life and the Law, with Selected Judicial Opinions and Articles. In April 2019, Greenberg joined an impressive group of individuals from the highest levels of the profession who have delivered the Charles Evans Hughes Memorial Lecture, the annual event that honors Hughes’s service to the nation and devotion to the law. Greenberg’s lecture was titled “Charles Evans Hughes & The Role of New York’s Organized Bar at a Time of Crisis for the Rule of Law.”
Greenberg earned his law degree from Syracuse University College of Law, cum laude, and his undergraduate degree from the University of Chicago, with honors.
About the New York State Bar Association
The New York State Bar Association is the largest voluntary state bar association in the nation. Since 1876, NYSBA has helped shape the development of law, educated and informed the legal profession and the public, and championed the rights of New Yorkers through advocacy and guidance in our communities.