We have a “justice system” charged with interpreting and enforcing laws. Many of us are proud of it. Others of us are critical of it. Unfortunately, many people are even disgusted and dispirited by it. They have no faith in it.
Why? There are plenty of reasons. Some are convinced, “the fix is in.” They think it is an “old boys’ network,” more interested in consolidating and protecting existing institutions and powers, that is, protecting itself, among other institutions — a shady incestuous, enmeshed, and intertwined guild of lawyers.
It is certainly true that there are many intersecting, entwined roots, allegiances, loyalties, and enmities beneath the surface of the Twin Cities’ legal community. This is true of every community, whether small-town Worthington or corporate America…And these tangled and invisible connections going every which way can give rise to suspicions and concern, whether justified or paranoid.
In my recent interview with Hennepin County trial court Judge Susan Robiner, we touched on these issues a bit, talking about disqualification or “recusal.” Judge Robiner said:
I err in the direction of recusal. I just don’t understand why you wouldn’t. If people are uncomfortable, or think there’s something about your background that may create a conflict or appearance of a conflict, I don’t want to be in that fight.
Sounds wise to me. In a long-standing bitterly fought divorce proceeding which appears to involve multiple millions of dollars (there is a reference to >$1 million in legal fees already incurred by one side), the “Consensual Special Magistrate” (CSM),Steven B. Schmidt, initially rejected soon-to-be ex-wife Jibil Kazeminy’s motion to disqualify. That initial decision was supported by then-acting Hennepin County District Court Chief Judge Ivy Bernhardson. But then an old adversary of Schmidt’s climbed into the ring to represent the divorcing wife…
When Jibil Kazeminy, the divorcing wife of Nader Kazeminy, retained William R. Skolnick, CSM Schmidt decided he could no longer play referee because Skolnick, on behalf of a client some years ago, sued Mr. Schmidt, personally, for aiding and abetting fraud in the context of a divorce case. In fact, Skolnick’s client previous client Katherine Rucker sued Schmidt and his then-law firm Rider Bennett L.L.P. (R.I.P.) alleging that he had conspired with her ex-husband to conceal assets in their divorce. That case went all the way up to the Minnesota Supreme Court, which decided in Katherine Rucker’s (that is, Skolnick’s client’s) favor, and the case appears to have been settled on remand.
In the interest of judicial economy, public confidence in the independence, integrity and impartiality of the judiciary, the CSM [, Steven B. Schmidt,] has chosen the option to disqualify himself from presiding over any further proceedings in this matter effective immediately.
So it would seem that this is the system working as it should work.
Steven B. Schmidt has a very long and distinguished career in Minnesota family law circles. He is undoubtedly respected by a great many colleagues and broadly in the Twin Cities family law community. This is all the more reason why he was correct to disqualify himself. Mr. Skolnick’s lawsuit against him probably touches the deepest and the rawest of nerves. The allegations in the earlier case went to the core of his personal integrity.
And, in fact, Mr. Schmidt’s disqualification itself contains some not-too-subtle swipes at Jibil Kazeminy for retaining Mr. Skolnick, which the CSM implies may have been an improper maneuver.
[T]he CSM has searched his conscience in attempting to evaluate whether his impartiality might reasonably be questioned at trial with regard to any bias or prejudice against Respondent’s newly associated counsel, Mr. William Skolnick…[I]t is a real possibility that Mr. Skolnick was asked to associate as counsel in this proceeding for the purpose of setting the CSM up to disqualify himself or to create a record for appeal. The CSM could conduct a hearing for the purpose of disqualifying Skolnick (!?) from appearing at trial based upon the last minute association if the record demonstrated it was done for the purpose of disqualifying the CSM.
(Underlining and parenthetical added.) (Aside: how exactly would one go about proving that? How would one make that “record”?)
So, in a sense, the document is self-validating. The suggestion that Jibil Kazeminy hired Skolnick, a 30+ year Minnesota trial lawyer with extensive family law experience to force Mr. Schmidt to recuse himself (as opposed to hiring Mr. Skolnick because he is an effective and economical lawyer and she wants him to represent her) is arguably the kind of insinuation that reflects the risk of Mr. Schmidt’s bias.
Full Disclosure: I sublet my office space from Skolnick & Joyce, Mr. Skolnick’s firm. Some might take the position that this post is, itself, an embodiment of the “entwined roots, allegiances, loyalties, and enmities beneath the surface of the Twin Cities’ legal community.”