Did Joel Tenenbaum's counsel once represent the judge? Judge says 'no'; First Circuit said 'yes'

Little noticed in the Joel Tenenbaum saga was a brief order issued by Federal District Judge Nancy Gertner on January 13, 2009:

Consistent with remarks to counsel this afternoon, the Court has reviewed the details of a previous case in which Judge Gertner and Professor Nesson participated some 25 years ago. See In re Grand Jury Matters, 593 F.Supp. 103 (D.N.H. 1984). As the Court suspected, Professor Nesson did not represent Judge Gertner or her law firm at the time but appeared on behalf of another party to the proceedings, Wall and Cullen. See id. at 104. As a result, the Court sees no issue of relevance for this case. Nonetheless, the Court wanted to bring the matter to the parties' immediate attention, as always in such instances. With respect to the pending motion under Local Rule 83.3, the Court will issue a ruling tomorrow morning. (Gertner, Nancy)

What appears to have happened is that, on a conference call among attorneys and the Court, either Judge Gertner or Joel Tenenbaum's counsel, Harvard Law School Professor Charles Nesson, recalled a mid-1980s case in which they had both participated. The case involved a drug and tax prosecution in which Gertner, then a criminal-defense attorney in private practice, represented one of the defendants. Gernter and other defense attorneys were served with federal grand jury subpoenas seeking information about their fee arrangements with their clients. The defense attorneys moved to quash, and a Federal District Court in New Hampshire granted the motion, in the opinion cited in Judge Gertner's Jan. 13 order.

Understandably, given the passage of 25 years, neither Gertner nor Nesson immediately remembered the details of the case, including whether Nesson had actually represented Gertner in her effort to quash the subpoena. But Judge Gertner felt the matter was significant enough to do some additional research, presumably to make sure that the labels' attorneys had all the facts so that they could determine whether a disqualification motion was merited.

As her Jan. 13 order indicates, Judge Gertner located the District Court's opinion quashing the subpoenas. The counsel listing in the District Court's opinion was as follows:

W. Hunt Dumont, U.S. Atty. by Robert J. Lynn, Asst. U.S. Atty., Concord, N.H., for plaintiffs. 

Steven M. Gordon, Concord, N.H., Wiggin & Nourie by Richard B. McNamara, Manchester, N.H., Ellis, Fogelnest & Newman, P.C. by Alan Ellis, Philadelphia, Pa., Harry C. Mezer, Albert F. Cullen, Jr., Cullen & Wall, Boston, Mass., Backus, Shea & Meyer by H. Jonathan Meyer, Manchester, N.H., John Reinstein, Andrew Good, John Wall, Silverglate, Gertner, Baker & Fine by Judith H. Mizner, Boston, Mass., for defendants. 

James D. Forsyth, II, Manchester, N.H., for S. Gordon. 

Charles Nesson, Cambridge, Mass., for Wall and Cullen. 

Ray Raimo, Manchester, N.H., for Hodes. 

Judge Gertner's interpretation of the opinion was that "Professor Nesson did not represent Judge Gertner or her law firm at the time but appeared on behalf of another party to the proceedings, Wall and Cullen." It is certainly true that the opinion states that Nesson represented John Wall and Albert Cullen (two other defense attorneys served with subpoenas). But opinion does not definitively prove Judge Gertner's conclusion that "Professor Nesson did not represent Judge Gertner or her law firm at the time." Indeed, for reasons that are not clear (but that I suspect was a simple oversight), the opinion does not identify Gertner's attorney in the proceedings at all.

Judge Gertner's January 13 order cites only the District Court's opinion on the subpoena matter as support for her conclusion that Nesson did not represent her. But her order fails to note that the government appealed the District Court's order quashing the subpoenas, and the First Circuit issued a published opinion. In re Grand Jury Matters, 751 F.2d 13 (1st Cir. 1984) (affirming order quashing subpoenas). And the First Circuit's opinion makes crystal clear that Nesson did in fact represent Gertner:

Charles R. Nesson, Cambridge, Mass., for appellees Nancy Gertner, Albert Cullen, and John Wall.

It is unclear why Judge Gertner (or her clerks) failed to note the First Circuit's opinion, which clearly and directly contradicts the statement in her Jan. 13 order that "Professor Nesson did not represent Judge Gertner or her law firm at the time...."

What are we to make of the apparent error in Judge Gertner's order? First of all, I highly doubt that it was deliberate; given the passage of time, it is not at all surprising that both she and Professor Nesson would have forgotten the details of the case, and it is implausible to believe that she would have intentionally sought to suppress the fact -- as explicitly expressed in a published opinion by the First Circuit -- that he did indeed represent her.

Does Nesson's apparent former representation of Judge Gertner require her recusal, or present grounds for the plaintiffs to seek her disqualification? I highly doubt it. The relationship between the two does not appear to satisfy any of the enumerated grounds for disqualification found in 28 U.S.C. § 455(b). While the statute does have a catch-all provision requiring disqualification where the judge's "impartiality might reasonably be questioned," a 25-year-old representation that neither the judge nor her former attorney can even clearly recall does not seem to rise to that standard.

So it's unlikely that this issue will ultimately have direct legal impact. But it does add to our understanding of the dynamics of the case. Given the long-standing relationship between Judge Gertner and defense counsel, the pro-defendant comments she has made in open court, and the fact that she actively facilitated Nesson's representation of Tenenbaum, the labels' strong resistance to the webcast of motion hearings becomes more understandable. 

Lastly, one is compelled to note the irony of Nesson seeking to compel the deposition of opposing counsel in this case, when 25 years ago he so vociferously -- and successfully -- protested attorneys' efforts to question opposing counsel -- counsel who now happens to be the judge presiding over this very litigation.