GALVESTON — At 11:30 a.m. on Oct. 6, 2006, Galveston attorney Tony Buzbee scored an important victory in a case involving 52 victims of the 2005 explosion at BP’s Texas City refinery. Minutes after the hearing, Buzbee took the judge who made the ruling, U.S. District Judge Samuel B. Kent, to lunch, said a witness who asked not to be named for fear of reprisal.
Buzbee and a lawyer for the judge didn’t confirm Friday whether the lunch took place. But if it did, there was nothing improper about it, they said.
Kent’s lawyer added that the ruling was perfectly reasonable.
“As long as judges and lawyers aren’t discussing court business, there’s nothing wrong with it,” Buzbee said. “If there is something wrong with it, you might as well indict every lawyer and every judge on this island.”
In the ruling, Kent ordered BP CEO Lord John Browne to submit to sworn questioning about the explosion.
Buzbee argued Browne had unique knowledge of the catastrophe and the events leading to it. But lawyers who defend corporations say plaintiffs’ attorneys often call top executives as a strategy to force big settlements before trial.
Twelve days later, BP settled all of the injury cases, a move that is conservatively estimated to have been worth millions to Buzbee personally. The settlements also meant Browne avoided being deposed.
Buzbee said Kent frequently dined with many attorneys, including some who defended BP. None ever got favored treatment in court as a result, he said.
But Kent’s social life has already gotten him into trouble with his peers in the Southern District of Texas.
In 2001, 85 cases were removed from his court. The stated reason was that Kent’s docket was too crowded.
But the same lawyer, Richard Melancon, was a party to all of them. One of Kent’s closest friends, Melancon hosted the reception after Kent’s second marriage and was a frequent companion of the judge.
Criminal Probe
The FBI is in the midst of a criminal investigation of Kent, who sat on the federal bench in Galveston from 1990 until September, when he began serving a four-month suspension after a court employee accused him of touching her in ways she didn’t want.
Through his attorney, Dick DeGuerin, Kent denies the accusation.
The Daily News has been told — and Kent’s attorney has confirmed — that the investigation has extended beyond accusations of sexual misconduct. FBI agents also have been reportedly interviewing restaurateurs and others about meals and drinks Kent has had in local establishments and about the people — particularly lawyers — with whom the judge had them.
Pat Villafranca, a spokeswoman in the FBI’s Houston office, last month said she couldn’t comment on any federal investigation of the judge.
Friendly Relations
Some in the Galveston legal community have questioned Kent’s social relationships with some of the lawyers who frequently practiced in his court.
“A handful of lawyers was perceived to have special favor with Kent,” Galveston attorney Mark Stevens wrote in a guest column last year. “Those lawyers were known as gatekeepers by some ‘unfavored’ lawyers who were often treated like dirt, or worse, by Kent.”
So long as a judge and a lawyer don’t discuss a case without the lawyer for the other side present, there’s nothing wrong with it, both DeGuerin and Buzbee said last week.
Buzbee insisted that he never discussed cases when he was alone with Kent. DeGuerin said the judge didn’t do that with any lawyer.
DeGuerin had earlier said that when Kent dined with lawyers who were also friends, sometimes they picked up the tab and sometimes the judge did.
“Tony Buzbee’s always been a good friend of Judge Kent,” DeGuerin said last week. “He doesn’t favor lawyers because of friendship.”
Neither DeGuerin nor Buzbee confirmed that Kent and Buzbee lunched together on Oct. 6, 2006, much less who paid if they did.
Buzbee said he probably had lunch at the upscale Willie G’s at Galveston’s Pier 21 “every single day” in 2006. He estimated that he lunched with Kent half a dozen times that year.
“I’ve probably brought all the judges in town there at one time or another,” Buzbee said.
But he added that it would be ridiculous to think a federal judge would rule a certain way in exchange for a $30 lunch.
Code Of Conduct
“Ethics Essentials,” a pamphlet for beginning judges published by the federal judiciary, says it’s improper for judges to seek or accept gifts from those with business before their courts.
But it says “personal social hospitality” doesn’t count as a gift. Treating someone to lunch certainly could be considered “personal social hospitality.”
But there is a requirement in the Code of Conduct for Federal Judges that might have some bearing on whether it’s right for a judge to go to lunch with a lawyer right after making a big ruling in the lawyer’s favor. The code says judges must avoid impropriety and the appearance of impropriety.
“Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges,” it says. “A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”
The code says it’s impractical to try to list all the acts that would be improper or give that appearance.
“The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired,” it says.
A Big Ruling
On March 23, 2005, a massive explosion at BP’s Texas City refinery killed 15 and injured 180 more.
On Aug. 11, 2006, Buzbee brought suit in Kent’s court on behalf of 52 who said they were injured in the blast. Shortly after that, he filed a motion to depose Lord John Browne, BP’s London-based CEO.
Depositions are typically taken before trial. In them, witnesses are under oath and they take questions from lawyers for both sides in a lawsuit.
In state court before Judge Susan Criss, Buzbee and Beaumont lawyer Brent Coon had already won the right to take such a deposition. But the state Supreme Court last week ruled that Criss had overstepped her bounds and any interview of Browne would be much more limited than the one Criss had granted.
State rules against taking so-called “apex depositions” are said to be stricter than federal case law.
Attorneys who represent big companies defending against damage suits say that trying to get CEOs to give sworn statements usually isn’t intended to get at the truth. Rather, it’s a ploy to force a fat settlement, they say.
“Typically, the goal of an Apex deposition request is not primarily to uncover information reasonably calculated to lead to the discovery of admissible evidence,” says an article by Richard J. Moore and Paul V. Lagarde, published last year in the journal of the Federation of Defense and Corporation Counsel, a professional organization.
“Instead, the goals are to assert pressure in an effort to extort settlement, and to elicit testimony from a high-ranking officer which is not particularly relevant to the matters at issue, but which is potentially prejudicial in large part for the very reason that the deponent lacks specific knowledge regarding the liability claim.”
In asking that Kent not allow Buzbee to depose BP CEO Browne, the company’s lawyers made three arguments:
• There have been a number of federal court rulings saying that unless a CEO is shown to have direct knowledge of a mishap that his or her underlings don’t, the CEO doesn’t have to testify.
• The proposed deposition of Browne had no limits.
• The request to depose Browne was premature, because a scheduling hearing in the trial hadn’t been held.
Despite that, Kent held a hearing four days later. In it, he partially granted Buzbee’s request.
Kent ruled that lawyers could question Browne in his London office. If any of the lawyers were disrespectful, they’d be fined $10,000, Kent warned.
In the hearing, the judge said it was the first time he could remember ordering the deposition of the top executive of a big corporation. But he pointed to Browne’s public statements that the explosion fundamentally would change the way BP did business.
And he pointed out that Browne had already journeyed to Texas City because of the blast.
“Big, important people do big, important things,” Kent said. “But nobody is above the law, be he Lord Browne or the president of the United States.”
The hearing concluded at 12:05 p.m. Shortly thereafter, the two got in Buzbee’s Aston Martin sports car and went to lunch, according to a witness who asked not to be named for fear of retaliation.
On Oct. 18, 12 days after the hearing, BP and Buzbee agreed to settle the 52 cases for an undisclosed amount of money.
Past Practice
When it comes to judges’ social relationships, the rules aren’t clearly defined, said William G. Ross, an expert on judicial ethics who teaches at Samford University Law School in Birmingham, Ala.
If Kent did grant Buzbee the right to depose the BP CEO and immediately went to lunch with Buzbee, the judge probably didn’t violate the federal canons of ethics, Ross said.
“But if a judge came to me and asked my advice, I would recommend against it.”
For his part, Stevens, the Galveston lawyer who’s been publicly critical of Kent and some of his lawyer friends, said there was a way for Kent to be sociable and avoid bad appearances.
Stevens said many judges, including former U.S. District Judge Hugh Gibson, often dined with colleagues in the legal community. But it was at a long table in the Ship Ahoy cafeteria where everybody could hear what was being discussed.
“The problem arises when people get in the habit of having lunch in private circumstances where other people don’t know what they’re talking about,” Stevens said.
