Trials & Litigation

Law clerk's 'owe me a beer' text to BigLaw associate leads to review by federal judge

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A federal judge will review any communications between a federal law clerk and Zuckerman Spaeder lawyers involving a civil suit against the law firm’s client, a professional baseball player accused of rape.

U.S. District Judge Ellen Segal Huvelle agreed to conduct the review in an Oct. 20 decision (PDF) that cited the law clerk’s texts, report the Blog of Legal Times and Courthouse News Service.

Lawyers for the alleged rape victim are seeking the information after learning that Marina Fernandez, the law clerk for U.S. District Judge Reggie Walton, texted a Zuckerman Spaeder associate on the day that Walton issued a favorable ruling for Zuckerman Spaeder’s baseball-player client.

“You’re going to owe me a beer, FYI,” Fernandez texted the associate, Benjamin Voce-Gardner, shortly before Walton issued the ruling, which was stamped at 3:34 p.m. on Aug. 6. Shortly afterward, Fernandez texted Voce-Gardner, “Yes, as of 3:34 today you owe me a beer (or wine!).” In a final text later that afternoon she wrote, “Dude, it’s a joke. Let’s catch up for real, though.”

Fernandez’s clerkship ended in September and she is now a trial lawyer at the U.S. Justice Department, according to Legal Times.

In a Sept. 30 opinion, Walton (PDF) refused to recuse himself and said Fernandez had been screened from the case because her father, Jack Fernandez, is a partner at Zuckerman Spaeder. Walton did, however, leave open the possibility that he would reconsider.

Marina Fernandez was friends with Voce-Gardner since he provided pro bono legal assistance on a personal legal matter in January.

When lawyers for the alleged victim subpoenaed Fernandez and Voce-Gardner, Walton turned the issue over to Huvelle. In the Oct. 20 decision, Huvelle said the subpoenas were overbroad and “unduly intrusive” because they sought communications between Fernandez and Voce-Gardner on unrelated legal matters, and because they sought exchanges between Walton and his two law clerks. The text issue, however, deserved more attention, she said.

She noted that defense lawyers have disclosed that Fernandez sent her father “similarly worded” messages.

“Serious issues involving the conduct of a judicial law clerk have come to light,” Huvelle wrote, “and plaintiff is understandably concerned that Ms. Fernandez may have participated in a more extensive back-and-forth with defense counsel about the above-captioned case during her tenure as a law clerk.”

The defendant in the litigation is professional baseball player Alfredo Simón Cabrera. He has denied allegations that he raped the plaintiff, identified only as Jane Doe, at a Washington, D.C., hotel.

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