New documents: McCaffery had role in referral fees

McCaffery and wife Lise Rapaport kiss after he was sworn in as justice. He stepped down in October, and Rapaport, who was her husband's aide for 17 years, also retired. (ELIZABETH ROBERTSON / Staff Photographer)

Michael Connors, a worker on the Pennsylvania Turnpike, was pulling his snowplow into a garage when the massive door crashed down on him, gouging his face.

As he recovered, Connors sought advice about a lawyer to hire to seek compensation for his injuries.

He turned to an acquaintance, Judge Seamus P. McCaffery, who referred him to a Philadelphia law firm, records show.

Lawyers ended up winning Connors $425,000. From their share of his winnings, the lawyers paid about $35,000 in referral fees.

But that money didn't go to McCaffery, who retired from the state Supreme Court late last year amid a scandal over pornographic e-mails. It went to his wife, who was also his judicial aide.

In a memo at the time, Connors' lawyer explained it this way: "although this was referred to me by Seamus McCafferty . . . Seamus's wife Lise Rapaport is an attorney and she gets the referral fee on it." (The memo misspelled McCaffery's name.)

This was not an isolated incident. Law firm records obtained by The Inquirer document another instance in which McCaffery involved himself in a referral case for which his wife was paid. The case involved an injury in an auto-parts factory.

And in a third case, the father of a slain police officer says his family has no recollection of speaking with McCaffery's wife, even though a law firm paid her $96,000 for referring them as a client.

 

'Case precedent'

In interviews, law professors who specialize in judicial ethics said McCaffery's involvement in referrals crossed ethical lines.

They said judges should not get involved in paid referrals - and some said the practice violates the Code of Judicial Conduct's ban on judges practicing law. Judges who violate the code can be removed from the bench and lose their pensions.

"I think that under the case precedent and the Code of Judicial Conduct, he violated the code," said Leslie W. Abramson, a law professor at the University of Louisville who has written extensively about judicial ethics.

McCaffery, 64, a Democrat, won fame in the 1990s as the no-nonsense "Eagles Court" judge. He gave up his $200,0000-a-year seat on the Supreme Court on Oct. 27 amid a scandal over his sending e-mails containing X-rated images.

Rapaport retired from her $84,000-a-year post, too. She was her husband's aide for 17 of his 20 years as a judge.

McCaffery and Rapaport did not respond to repeated requests for comment. When The Inquirer first published articles about the fees, in 2013, their lawyer at the time said McCaffery and his wife had acted legally and appropriately. The lawyer, Dion G. Rassias, said that making referrals did not constitute the practice of law.

Rassias said then that the newspaper had unfairly suggested that "Ms. Rapaport's referrals are somehow 'a front' for her husband." He said the referrals reflected her excellent legal reputation and "magnetic personality."

McCaffery retired a week after the state Supreme Court ordered the state Judicial Conduct Board to investigate the pornographic e-mails, the referrals, and allegations that he meddled in cases brought by a law firm that had paid a referral fee and whose lawyers were among his campaign donors. The court also ordered the board to investigate whether McCaffery had fixed a traffic ticket given his wife.

In a deal under which McCaffery left the bench, the conduct board dropped its investigation.

 

No charges

When The Inquirer first reported the referral fees, it was able to learn little about most of the cases, beyond the names of the lawyers who paid them.

The newspaper reported that McCaffery, as a judge, had heard appeals in unrelated cases involving some of the law firms that paid such fees, but did not disclose them from the bench.

The stories helped fuel an FBI investigation of the referral fees - and prompted the justice and his wife to file a defamation lawsuit against The Inquirer.

The couple withdrew the suit in October, when The Inquirer agreed to report a statement from prosecutors that they had concluded "federal criminal charges should not be filed."

Since then, The Inquirer has obtained documents, including internal notes and e-mails from law firms, that provide a much fuller picture of the referrals and identify most of the clients involved.

The Inquirer has also learned that the former justice did not publicly disclose all of the fees on forms that require officials to list all sources of family income.

On his disclosure forms, McCaffery declared that Rapaport was paid fees in 2008 and 2009 by the Fox Rothschild law firm. Those were his first years on the Supreme Court.

However, he did not report that the same case had generated fees from Fox Rothschild for 14 previous years while he was a judge in Philadelphia Municipal Court and on state Superior Court, according to people familiar with the payments. The payments averaged $1,135 annually and each year exceeded the $500 threshold for required reporting.

Another Philadelphia law firm, Raynes McCarty, also paid a referral fee to Rapaport that McCaffery did not disclose as family income, records show. The firm did not respond when asked whether the fee, dating to 1999, exceeded the annual reporting threshold.

In all, nine law firms paid Rapaport $1.2 million in fees for referring about 15 clients since 2003. While not every client could be reached and some people declined to comment, several said they dealt only with Rapaport.

She earned the largest sum - $821,000 - for connecting the Philadelphia firm of Leonard Fodera to a family with a brain-damaged child. That money came from Fodera's one-third share of a $7.5 million malpractice settlement.

In that case, and some others, Rapaport never spoke with the clients, according to interviews, but rather with friends or relatives.

"That's not out of the ordinary," Fodera said.

In the brain-injury case, Rapaport gave Fodera's name to a reporter for a Russian-language weekly who had been covering her husband's 2007 race for the Supreme Court. At the time, Rapaport was on leave from her court job to manage his campaign. The reporter, Larissa Narita, said she relayed the name to her friends, the eventual clients.

In papers filed in the defamation suit, her lawyer wrote: "Rapaport did no work whatsoever on any referrals that she ever made, at any time."

Nor was work required under Pennsylvania's rules for lawyers. Most states require lawyers who make referrals to take joint responsibility for a case or to collect fees proportionate to work done. But Pennsylvania has not adopted this model rule from the American Bar Association.

 

'This gentleman'

Michael Connors was hurt on March 3, 2003, when the door fell on him at the garage in Plymouth Meeting.

The workers' compensation experts at Martin Banks Pond Lehocky & Wilson took him on as a client five months later, on Aug. 4, 2003.

A case note written that day says: "This gentleman was referred here to SHP by Judge Judge Seamus McCafferty." SHP are the initials of a lawyer then with the firm, Samuel H. Pond.

Two days later, another case note reports: "Judge McCafferty just called and the claimant was with him and he is sending him over to the office to speak with you re the intake."

Pond did not respond to several requests for comment.

In all, four case notes obtained by The Inquirer, written over a 14-month period, state that McCaffery was the one who referred Connors.

The notes also say McCaffery would check in periodically about the case, once asking for an update when he and Pond were at a meeting of the Plaintiff Trial Lawyers Association. According to the firm's files, Pond asked another another lawyer to "get back either to me or Seamus" about Connors' legal situation.

 

'A reminder'

At one point, Pond seemed to acknowledge that McCaffery, as a judge, could not collect referral fees. That meant more money could go to his firm, Pond observed.

In a memo, Pond said his firm had asked the Philadelphia firm of Robert J. Mongeluzzi to bring a so-called third-party lawsuit against the company that installed the garage door.

The memo noted that "per SHP" - Samuel H. Pond - "the Judge can not collect a referral fee. Therefore, any fees from the 3rd party case, that we referred to [Mongeluzzi's] is ours."

Later, Pond dropped the idea that he didn't have to share the fee.

"As a reminder," he wrote Mongeluzzi, "any referral fee generated in this case is to go to Lise Rapaport, Esquire."

As work wound down, Pond said, "I am closing out the referred case although this was referred to me by Seamus McCafferty and I referred it off to Mongo, Seamus's wife Lise Rapaport is an attorney and she gets the referral fee on it."

The injury led to a $125,000 workers' comp payment and a $300,000 settlement to a lawsuit, records show. Rapaport was paid $4,900 by the Martin Banks firm and about $30,000 by the Mongeluzzi firm.

Connors, 58, spoke briefly with a reporter at the doorway of his home. He said he couldn't recall whether McCaffery or Rapaport sent him to Martin Banks, but added, "If it was any of them, it would have been Seamus."

 

A 'crazy' injury

Tyrief Shubert was injured Sept. 27, 2004, when a two-ton roll of steel fell on his right foot in a factory in Fort Washington.

"It was crazy," Shubert, 30, said recently. "It crushed the whole front of my foot."

After Shubert was injured, both Rapaport and McCaffery took an interest in his legal options, according to law firm records.

Rapaport made the referral to Martin Banks, according to firm documents and interviews with Shubert and his relatives.

The firm's internal notes quote lawyer Pond as saying, "I spoke to this client to do the intake at Seamus McCaffery's request."

In another memo, Pond noted that McCaffery had later asked whether the case had generated a lawsuit. In a letter to Rapaport, Pond noted: "I saw Seamus last night and he mentioned the third party case."

In 2006, Shubert's claim was resolved for $40,000. Pond's firm received 20 percent, or $8,000. From that, Rapaport was paid $1,600.

 

'Problematic'

In interviews, law professors questioned McCaffery's role in the referrals.

Some, such as Abramson and Ronald Rotunda, a professor at Chapman University in California, said that when McCaffery became involved in the referrals, he was practicing law - a dual role forbidden under Pennsylvania's ethics code for judges.

Jeffrey M. Shaman, of DePaul University, and Charles Geyh, of Indiana University, questioned McCaffery's involvement on other grounds.

"I have reservations about judges making referrals to lawyers who are very likely to be before that judge," Geyh said. "It creates a financial relationship that is problematic regardless of whether you characterize that as the practice of law."

Shaman and Rotunda said they were troubled by the instances in which McCaffery listed his wife as having received income from referrals though records show he played a role in the cases.

Geoffrey Hazard, an emeritus law professor at the University of Pennsylvania and Hastings law school in California, said McCaffery's disclosure forms were "incomplete."

"He was masking it," Hazard said, "because he knew damn well if he put it in there, there would be questions raised. So he's making an incomplete disclosure."

 

'I don't know her'

Michael Weigand Jr. was a police officer just like his father. He died on duty at age 25 on Sept. 14, 2008, in a township south of Gettysburg when he was struck by a speeding Ford pickup.

Weigand, a police sergeant, was thrown from a motorcycle as he escorted a charity motorcycle ride to improve a park in Latimore Township, where his father is police chief.

Two weeks later, days after Chief Weigand had buried his son, the chief provided escort service for another charity motorcycle ride - one from Harrisburg to the Harley-Davidson dealership near Gettysburg. The parade marshal was Justice McCaffery, a motorcycle enthusiast.

During that ride, Weigand said, someone mentioned the name of Schmidt Kramer, a Harrisburg law firm, but he can't recall who. He said events were a blur in those early days of grief.

"Put yourself in my position," Weigand said. "A week after I've buried my son, I've come back to work."

Weigand said it was possible that McCaffery was the one who mentioned the firm's name during the ride on Sept. 27, 2008. "I think that's what might have been it," he said.

After legal matters were resolved, Schmidt Kramer paid McCaffery's wife $96,000 for referring the case to the firm.

But the chief said neither he, his wife, nor their daughter-in-law, Amanda Weigand, had any recollection of ever talking with Rapaport.

"I didn't even know who she is," he said.

He said Amanda was equally puzzled.

"Mandy said, 'I don't know her,' " the chief said.

Scott Cooper, the Schmidt Kramer lawyer who handled the case, did not return phone calls.

Cooper is a former president of the state organization for personal-injury lawyers. Schmidt Kramer's website says he has "argued many significant appellate cases in the Pennsylvania state and federal courts."

His firm was a participant in at least seven cases before the state Supreme Court while McCaffery was on the bench. Lawyers with Martin Banks - a now-closed firm - took part in about two. Fodera's firm has never been involved in a Supreme Court case.

Shortly after landing the case involving the death of Sgt. Michael Weigand Jr., Cooper sent Rapaport a thank-you letter explaining that his firm would pay her a third of its fee.

"Thanks to the Justice as well!!" Cooper added in a handwritten postscript.

 


cmccoy@phillynews.com

215-854-4821 @CraigRMcCoy