COUNTER-STATEMENT OF FACTS

Intervenor quotes respondent's brief in regard to when he announced his intention to depose attorney Frank Bybel: "Mr. Ostrowski next protests that he planned to renew his recusal motion and in fact 'had announced his intention to renew the recusal motion and that the court had explicitly authorized such a motion.' See Brief of Respondent-Appellant at 44-45." [p. 31-32 (emphasis added)]

In reality, respondent's brief states that "the court had implicitly authorized such a motion." [p. 45 (emphasis added)] While intervenor alleges that the above assertion is "demonstrably false," [p. 32] its truth is easily proven by reference to Judge Skretny's order of August 9, 1995 [JA102; see also JA747] The last paragraph states:

Juxtapose this order with the next passage from intervenor's brief and it becomes apparent that intervenor has much explaining to do: "At a July 31 [1995] status conference, the District Judge not only denied Mr. Ostrowski's oral motion to renew his recusal motion, but he also advised Mr. Ostrowski that no further recusal motions would be permitted." [p. 32] Had Judge Skretny denied any motions at the status conference, such denial would have been reflected in the order of August 9, 1995, but it is not. Further, Judge Skretny's order explicitly contradicts intervenor's statement.

An examination of the transcript of July 31, 1995 [DN ___]1, ordered by respondent after reading intervenor's brief, contradicts that brief. It reveals that respondent's counsel made no motion to recuse that day, and made no motion to renew the recusal motion. Rather, he merely announced his intention to so move, in the context of announcing the imminent Bybel deposition. As of July, 1995, respondent, like all Americans (post-1776), did not have to beg permission to make motions in court. See, U.S. Const., Amends. I and V. The transcript further reveals that Judge Skretny did not forbid a further motion to recuse, but merely stated "I will only consider the motion if you give me a legal basis in your application. . ." [4:3-5]

Intervenor inexplicably alleges that neither Judge Skretny nor Judge Heckman entered any order addressing the Bybel deposition sanctions motion. [p. 33] On October 11, 1995, respondent filed an objection to Judge Heckman's order granting intervenor's motion for a protective order. [JA 819, 831] Among the relief requested in the objection was the sanctions and attorneys' fees originally requested in respondent's papers in opposition to the motion. [JA 768, 778, 824] Judge Skretny denied the objection on October 17, 1995. [JA 107]

Intervenor repeatedly refers to the motion to cancel the Bybel deposition as "moot", as if to suggest that respondent is seeking an order of remand to allow him to depose Mr. Bybel. Yet, clearly no such request is made in respondent's brief. See, Point III and Conclusion. Thus, intervenor's discussion of the mootness of the Bybel deposition appears designed to confuse this Court as to the issues before it.

The defendants, perhaps following Judge Heckman's lead in pretending that motion papers were not filed [Res. Brief at 44], pretend on appeal that respondent did not file a cross-motion for sanctions. [p. 33] Defendants--who four times referred to respondent in their brief as the "intervenor" [p. 34, notes 7 and 8]--thus continue the pattern of confusion they displayed below and which is detailed at pages 34 and 35 of respondent's brief. Respondent did file a notice of motion for sanctions in the form of an "affidavit and cross-motion" dated July 27, 1993 [JA 684], which, complying with FRCiP 7(b), was in writing and did "state with particularity the grounds therefor, and . . . the relief or order sought." The affidavit's first paragraph states that it is "in support of my cross-motion for attorney's fees and sanctions against the Intervenor's and Defendant's attorneys." [JA684] Paragraph 7 clearly echoes the language of Rule 11: "the motions . . . are entirely baseless, frivolous, irresponsible, and annoying." [JA 685] The prayer for relief asks the court to "order the moving parties to pay my expenses in contesting this matter." [JA 686] There was no need for the cross-motion to specify the time and place of argument since the motion had specified those facts.

The docket sheet describes this paper as being "in support for cross-motion for attys fees & sanctions". [Doc. No. 179] Respondent's affirmation objecting to Judge Heckman's denial of the cross-motion states that the opposing parties "were in a default posture vis a vis my cross-motion . . . they defaulted in responding to my cross-motion." [JA 714] The prayer for relief asked the court "to grant my cross-motion for sanctions and attorneys' fees." [JA 716] On October 6, 1996, Judge Skretny explicitly described respondent's cross-motion as a "pending motion" which he thereupon stayed. With that stay never lifted and with a subsequent order barring the filing of any papers, there was no further litigation of the cross-motion.

It is unfortunate that respondent is forced to spend precious space in this brief, not in rebutting substantive arguments, but in correcting factual errors and misstatements of the record. More importantly, these factual errors put the Court on notice that relying on legal or factual assertions in intervenor's and defendants' briefs will be a precarious undertaking.

I. RESPONDENT IS AGGRIEVED BY SEVERAL FINAL ORDERS OF THE DISTRICT COURT.

Intervenor's main argument on appeal is that respondent is not aggrieved by any order of the District Court. [Point I] The credibility of this assertion is best seen by noting that the intervenor herself cites a case recently decided by this Court that proves that at least the district court's order barring the filing of any papers in the District Court is appealable. Motes v. Rademacher, 86 F3d 13 (2nd Cir. 1996); Int. Brief at 37. Also, the court's denial of sanctions against the intervenor for moving to cancel the deposition of Mr. Bybel is clearly an appealable order. Intervenor offers no coherent argument or citation to the contrary, only the misstatement of the record noted above. Judge Skretny's order, affirming Judge Heckman's denial of sanctions is an interlocutory order appealable under the final judgment rule. Since the relief requested with respect to both such orders involves a remand to District Court for further proceedings, respondent has standing to appeal the court's denial of his motions for recusal. Thus, even without considering respondent's omnibus motion for sanctions, three appealable orders are before the Court. Why intervenor denies this is inexplicable. Yet, much of intervenor's behavior in the court below was inexplicable as well.

Intervenor's argument that the Court has no jurisdiction over respondent's omnibus claim for sanctions must be seen in the context of the relief requested by respondent. Respondent seeks a remand to a different judge, with both a stay of the motion lifted and a further order barring the filing of papers lifted as well so that the motion, made in July, 1993 can be litigated. Thus, even if one were to credit intervenor's argument that, in the absence of an order explicitly denying the motion, this Court cannot review the matter, the Court could, in reviewing the other orders cited above, grant the relief requested by respondent. Thus, in this sense, intervenor's arguments are academic.

Alternatively, however, we argue here that the Court does have jurisdiction over the omnibus motion for sanctions: "[T]he finality requirement should be given a practical rather than a technical construction. . . an order which effectively sends a party out of court is appealable . . . A decision is final for purposes of appeal if an appeal is the only method of obtaining review." United States v. Lee, 786 F.2d 951, 956 (9th Cir. 1986) (citations omitted).

As argued in respondent's initial brief, respondent is aggrieved by the District Court's denial, sub silentio, without oral argument or a hearing, of his cross-motion for sanctions. Surely, a district judge should not be allowed to shield himself from appellate review because he stays a motion, orders the moving party to file no further papers in the case pending further order of the court, then issues a final judgment dismissing the action, and never withdraws his order barring the filing of papers.

Further, when that same judge has unjustifiably refused to recuse himself, while viciously attacking a party for virtually every action he took in the case, a reasonable person could conclude that the judge had denied the motion, sub silentio. This court, like all other courts, recognizes the concept of judicial action taken sub silentio. E.g., Cohen v. Flushing Hospital and Medical Center, 68 F3d 64, 67, n. 1 (2nd Cir. 1995). Since Judge Skretny's entry of final judgment, combined with all other relevant facts,2 can be reasonably construed as a denial, sub silentio, of respondent's motion for sanctions, respondent is aggrieved by the final judgment and thus Judge Skretny's effective denial is appealable. To rule to the contrary would open the door to the truly bizarre possibility that trial judges could avoid appellate review by refusing to consider motions during the pendency of an action.

In Hines v. D'Artois, 531 F2d 726 (5th Cir. 1976), the court treated a purported temporary stay of an action as a final order when the stay put the case into an "extended state of suspended animation." Id. at 730. The court further noted that since the stay threatened to last at least eighteen months, "the parties here would have been served just as well by a stay pending the arrival of Godot." Id. at 732. Here, respondent has been waiting for Godot since July, 1993.

Finally, even if the Court were to conclude that it did not have appellate jurisdiction over the motion for sanctions and the two stay orders which put it into suspended animation, the Court has the option to treat this appeal as a petition for mandamus, seeking to compel the District Court to hear the motion. Hines v. D'Artois, supra at 732. In that event, however, the Court would still have the issue of recusal before it.

The above argument holds even though courts may consider motions for fees brought after final judgment has been entered. None of the cases so holding resembles this case in the slightest. The motion for attorneys' fees was brought on July 27, 1993. It was stayed on October 6, 1996, and stayed again on January 20, 1994. [DN 213] After attacking respondent's papers implicitly supportive of the motion for sanctions, Judge Skretny barred respondent from filing any papers "pending further order of the court." Though cognizant of the pending motion for sanctions, Judge Skretny entered final judgment without allowing a hearing on the motion, without allowing respondent to update his papers to take account of two years of developments, and, most importantly, without lifting his order barring the filing of papers. All these facts together evidence a denial sub silentio of the motion, a denial that this Court should review and remedy. That Judge Skretny could entertain a motion today (or nine years from now) is beside the point. He decided not to. Nor should his cryptic orders and steely silence be held against respondent in this regard. They are simply more evidence of Judge Skretny's bias against respondent.

II. RESPONDENT WAS BARRED FROM LITIGATING HIS CROSS-MOTION FOR SANCTIONS EVEN AFTER FINAL JUDGMENT WAS RENDERED.

Intervenor and defendants argue that respondent could have litigated his cross-motion for sanctions after final judgment was entered. First, even if that were true, for the reasons stated in Point I, above, that would not impact on this Court's jurisdiction over the relief sought by respondent: remand to another judge for further proceedings. Second, the assertion is belied by evidence cited above that demonstrates that Judge Skretny denied the motion sub silentio. Third, Intervenor's argument that Judge Skretny's injunction against respondent filing papers "expired by its own terms when Judge Skretny's order of May 9, 1996, was entered. . . ", is a distortion of the order.

Judge Skretny's words--"James Ostrowski and his present counsel of record are also precluded from filing any further motions in this case until the sanctions phase of the contempt proceeding with respect to plaintiff is complete."--are contained in the decision portion of the "Decision and Order" of November 17, 1995. The "order" portion contains broader language: "IT IS HEREBY ORDERED, that plaintiff, JEFFREY M. Blum, and his former co-counsel of record, James Ostrowski, Esq., and each of them, are enjoined and precluded from filing any further papers in the above-entitled proceeding in the office of the Clerk of the Court for the Western District of New York without further order of this Court."

The most reasonable interpretation of this order is that no papers could be filed unless a "further order" was entered allowing that to occur. Further, a party recently subjected to years of biased judicial rulings and verbal abuse by a judge is certainly not going to risk a narrow interpretation of an order barring him from filing papers, lest he become embroiled in yet another Bleak Housian contempt proceeding. Since Judge Skretny, knowing full well that respondent's cross-motion for sanctions was pending, failed to issue an order allowing him to amend it or renew it, respondent risked a contempt citation if he did so.

Intervenor and defendants allege that respondent did not request permission to file his motions for costs and sanctions. [Int. Brief at 11; Defs. Brief at 34, n. 8] First, respondent's initial motion for sanctions was already filed and denied sub silentio. Second, Judge Skretny's order did not, like most orders of this kind, order respondent to move for permission to file motions before filing them. See, Motes v. Rademacher, supra. So moving would have violated the order. Furthermore, writing letters to the court risked a contempt citation or other sanctions, since Judge Skretny many times in the case expressed his peculiar contempt for receiving letters from lawyers.3 This policy is expressed in several orders in the case. E.g., DN 126. As for phone calls, that modern mode of communication also incurred Judge Skretny's and Judge Heckman's disfavor. Judge Heckman issued an order stating: "In accordance with the policy adopted by the District Court regarding this action, this Court will no longer accept telephone calls or letters pertaining to this case." [DN 127]

Defendants cite an order issued by Chief Judge Jon Newman, in a mandamus proceeding brought by respondent: "the November 17 order is fairly construed as an order obliging petitioner . . .to obtain leave of the District Court before filing any additional papers. . . "4 [p. 15] However, the order and other orders of the court prevent the seeking of leave, and the order itself does not provide for the seeking of leave. Chief Judge Newman was presumably not aware of the District Court's ban on letters and phone calls.

It should be apparent at this point that Judge Skretny's order, even if applied to the wackiest litigant in history, would be invalid because it leaves no room to request leave to file in a manner that allows appellate review of the denial of such a request. Though intervenor makes an allegation of fact that respondent failed to seek leave to file further papers, how does she know that? If respondent had done so, say for example, by phoning Judge Skretny's clerk, how would this Court know about it? And even if the Court did know about it, we reach the reductio ad absurdum destination by asking, "Is a phone call to a court clerk an appealable order?" That such absurd questions need to be asked is proof that Judge Skretny's order is inherently defective in form. That his order is also substantively baseless and merely designed to retaliate against those who embarrassed him by accidentally discovering a secret deal he made with a litigant, was amply demonstrated in respondent's brief at Points I and V.

If the Court, in spite of the above argument, wishes to add to its responsibilities the duty to review the phones calls of court clerks, it can grant respondent's motion, to be filed, to enlarge the record to include an affirmation concerning that issue.

III. RESPONDENT'S MOTION FOR SANCTIONS IS MERITORIOUS.

A. INTERVENOR AND DEFENDANTS FAILED TO RESPOND TO SEVERAL ARGUMENTS FOR SANCTIONS SET FORTH IN RESPONDENT'S BRIEF.

In Point II, intervenor treats respondent's motion for sanctions. Most significantly, intervenor ignores most of the issues raised in respondent's brief at Point II. For example, Intervenor does not respond to Point II-C--THE MOVING PARTIES FILED A MOTION THAT WAS UTTERLY UNNECESSARY TO PROTECT THEIR CLIENTS INTERESTS. That is, intervenor could have fully protected her interests, either by calling respondent as a witness against the plaintiff, or, if time was of the essence, by deposing respondent. She did neither. Nor does intervenor respond to the argument at Point II-D, that, regardless of how Judge Skretny ruled on the issue of privilege, intervenor would have no evidence against respondent.

Intervenor also fails to respond to Point II-B--failure to comply with Local Rule 39 (now 83.4)--in anything but a conclusory manner. The response is contained in a two-sentence footnote on page 17. The footnote, however, merely repeats Judge Skretny's sua sponte and factually erroneous defense of intervenor's motion that was fully rebutted in respondent's brief at pages 39-40.

The actual passage of Judge Skretny's, endorsed and relied upon by intervenor states:

If this statement means that the charge against respondent is to be found in "details" known only to plaintiff and respondent, that concept of due process notice is positively frightening. We might call this the "you know what you did and you better tell us" rule of due process notice.

This due process violation had real consequences. Not knowing in advance the possible grounds for liability, respondent was forced to litigate the matter aggressively and strenuously. The puzzlement of the movants and the court below about this approach is mystifying since their own actions made it necessary. Making a Kafkaesque motion against one who has done nothing wrong; refusing to dismiss the frivolous motion; telling him he will be punished "if appropriate"; talking about the ill-defined responsibilities of attorneys of record to supervise litigation; drawing adverse inferences against an attorney because he claimed privilege on behalf of a client; all in an atmosphere of ex parte communications, verbal abuse, probable dishonesty, and patent favoritism to selected parities, all combined to force respondent to expend enormous time and energy litigating against the motion, and suffer great anxiety and stress for two and a half years.

B. THERE WAS NO NEED FOR THE COURT BELOW TO INTERVENE ON BEHALF OF ONE PARTY AT THE EXPENSE OF THE OTHER.

Intervenor seeks to avoid sanctions by arguing that the District Court has the inherent power to investigate. First, even if this is true, that would not exculpate the defendants from liability for sanctions since they made no motion or request for an inquiry in their motion papers. [JA 451] Even with respect to the Intervenor, there are numerous problems with the argument. Intervenor's motion was to hold respondent in contempt. [JA 428] Also, Judge Skretny made it clear that respondent was at risk of being held in contempt on November 6, 1996. [Transcript of Nov. 6, 1995, p. 21:18] Thus, intervenor was bound by Rule 11 to perform her own inquiry prior to making a motion. Whether or not the court had the authority to do likewise is beside the point. Were this Court to hold otherwise, it would effectively repeal Rule 11 and encourage litigants to shirk their responsibilities and impose them on busy trial courts.

Further, respondent pointed out many times below that American courts, unlike their Continental cousins, have no generalized power of inquiry, outside certain narrowly defined circumstances not present here. Both opposing counsel and the court itself struggled mightily to find case law in support of such a generalized right of inquiry, but both failed. The court below tried to stretch the doctrine of "inherent powers" to cover this dispute. However, contrary to the court's assertions, inherent powers are those "squeezed out" of the necessity to make the courts able to function at all. See, Chambers v. Nasco, Inc., 111 S. Ct. 2123, 2131 (1991). An inherent power must be one without which the court could not function. Obviously, courts can function without bailing out parties who have failed to investigate their claims in advance.

The great danger involved in any expansion of the court's inherent powers is that these powers will be expanded in such a way that the primary function of the court as an impartial arbiter of disputes is jeopardized. The court below was improperly enlisted as investigator for the moving parties and, as any congressional investigation illustrates, it is difficult to investigate without veering into a prosecutorial mode. Clearly, the court below acted as prosecutor in the literal sense of the term, prosecuting the respondent more aggressively than did the moving parties (though they cheered from the sidelines), and thus the court thereby vacated the post of impartial adjudicator. Intervenor erred, not only in failing to engage in her own pre-filing inquiry (e.g., deposing the respondent), but also in moving for the court to do her job for her. The easygoing defendants neither did an inquiry nor asked anyone else to do one either.

In search of authority for her motion, intervenor selectively cites Advisory Committee Notes to a court rule--Rule 11 1993 revision--not relevant to her motion and which was enacted after intervenor's motion was made: "[t]he revision permits the court to consider whether other attorneys in the firm, co-counsel, other law firms, or the party itself should be held accountable for their part in causing a violation. When appropriate, the court can make an additional inquiry in order to determine whether the sanction should be imposed on such persons, firms, or parties either in addition to or, in unusual circumstances, instead of the person actually making the presentation to the court." [p. 16]

The passage above, however, appears to contemplate an inquiry only after where a violation is established. Here, in contrast, there was a contempt motion (not an inquiry), before any such violation was established. Further, it is not clear that there ever was a judicial inquiry. Lost in all the speculations about the powers of courts to make inquires, are the actual facts of what occurred in the court below. The court itself made no inquiry; it merely allowed the moving parties to bring a contempt proceeding without evidence or pretrial discovery, and to have a trial in federal court in the hope that the respondent might say something that would merit holding him in contempt.

Intervenor also conveniently omits other significant passages in the Advisory Committee Notes. In fact, the example of an appropriate inquiry set forth in the sentence following that quoted by the intervenor is relevant here:

This illustration is helpful to respondent's argument, made many times in the court below, that he acted as part-time, assistant counsel to a lead counsel who was also the client. Thus, it was apparent without any inquiry at all, that the plaintiff was in control of the litigation and that he was free to disregard the advice respondent gave him. Thus, since respondent was not lead counsel and since plaintiff was in complete control of the case as lead counsel pro se, respondent would not be sanctionable for plaintiff's acts under Rule 11 and thus intervenor's analogy to Rule 11 fails. Intervenor also fails to cite another interesting passage from the 1983 Advisory Committee Notes under Rule 11:

This passage puts to rest intervenor's implied argument that there is a "Rule 11/Rule 37/Contempt motion" exception to the attorney-client privilege. There is not. There are only the various and seemingly innumerable exceptions that are familiar to us all. Intervenor failed to respond to respondent's arguments detailing how the three exceptions to the privilege intervenor cited below were all fallaciously invoked and ultimately overruled by the court. [Res. Brief at 41, et seq.] Thus, even if the court had the right to make an inquiry and it was not an abuse of discretion to do so, the court itself would have run up against respondent's correct invocation of the privilege. Alternatively, the court would have faced the same conundrum intervenor and defendants face: either respondent's communications with his client were privileged, or there were none and thus respondent is not liable for his client's conduct.

A further distinction between this case and those occurring under Rule 11 is that the alleged misconduct in this case was a private letter not filed in court or served on the parties in the case. Thus, there was no reason to assume that lead counsel pro se would consult with his assistant counsel before sending such a letter.

Finally, intervenor apparently forgets that, while three of the four legal theories buttressing respondent's motion for sanctions require a showing of culpable or negligent conduct, i.e., Rule 11, 28 U. S. C. 1927, and the inherent power of the court, the fourth avenue for relief--Local Rule 39 (now 83.4), does not. That provision states that respondent, having been "discharged from the proceeding," in the "discretion of the Court, may have judgment against the complainant for his or her costs and disbursements and a reasonable counsel fee." This rule would allow sanctions to be awarded even if the moving parties engaged in no egregious misconduct. Thus, even if none of respondent's arguments with respect to the frivolousness of the contempt motion are valid, this case should nevertheless be remanded for a determination of whether respondent should be entitled to relief under Local Rule 83.4. Under that rule, a court in its discretion, could easily conclude that intervenor and defendants should pay for the privilege of having used a two and a half year proceeding and trial in federal court, instead of a one hour deposition in a private law office, to determine what any reasonable lawyer should have known beforehand: that respondent either did not communicate with his client about the memo at issue or if he had, such communications are privileged.

IV. RESPONDENT HAD STANDING TO COMPLAIN ABOUT BIAS EXHIBITED IN FAVOR OF A CO-RESPONDENT.

Intervenor's argument that only the intervenor, and not respondent, had standing to assert an objection to favoritism shown to Bybel, is fallacious. First, it indicates a lack of familiarity with this Court's jurisprudence on judicial bias. In Pashaian v. Eccelston Properties, Ltd., ___ F3d ___ (June 25, 1996, Docket No. 95-7403), this Court held:

A fortiori, respondent had such standing. As expressly stated in the court below, respondent was concerned that Judge Skretny would overcompensate for his favoritism to Bybel by aggressively prosecuting respondent. Further, we contend that, in the circumstances of this case, Judge Skretny's favoritism toward his friend Bybel at the same time constituted evidence of bias against respondent. That is, the motions against both parties were frivolous under Rule 11 standards. Yet, Bybel was "let out of the case" in a secret deal, while the court personally accused respondent of misconduct without any basis whatsoever.

Finally, intervenor's argument is disingenuous. She asserts that "if anyone had cause to complain about Judge Skretny's dismissal of the proceedings against Mr. Bybel, it was Intervenor and not Mr. Ostrowski." Int. Brief at 26. The question is, if intervenor had cause for complaint, why didn't she? Probably because Judge Skretny had already done all he could to rescue intervenor from respondent's Rule 11 cross-motion. (Bybel had made no such motion.) Thus, the fact that intervenor failed to complain about Judge Skretny's bias and ex parte communications is evidence that she believed that, on balance, Judge Skretny was biased in her favor.

Intervenor makes the silly argument that, since Judge Skretny made certain correct rulings in favor of respondent, that is evidence that he was not biased against him. [p. 29] First, one who falls below proper standards of behavior, as Judge Skretny did here, cannot defend himself by arguing that on other occasions he acted properly. If that were true, the entire criminal and civil law would be erased. Judge Skretny's ex parte communications and his improbable denial of them in the face of vast circumstantial evidence that he had them, is not excused because he dismissed the contempt charge against respondent. There being no evidence against respondent, how could he have done otherwise?

Intervenor argues that respondent's initial motion to recuse was brought only under 28 U.S.C. 144 and not 455 as well. [p. 27] In truth, respondent raised 455 grounds as well by attaching to his motion an excerpt of relevant provisions of the Code of Conduct for United States Judges which echoed those contained in 28 U.S.C. 455. [JA 706, par. 61 and JA 708-709]

Intervenor asserts that the grounds for recusal were "stated only generally." [p. 27] A perusal of respondent's initial 22 page recusal motion [JA 687] reveals great detail. Respondent's counsel not only alleged a "close, personal friendship" between Mr. Bybel and Judge Skretny, but far more: "Mr. Bybel worked on Judge Skretny's 1988 campaign for Erie County District Attorney. Judge Skretny was instrumental in obtaining employment for Mr. Bybel at the law firm of Cox Barrell, 6 Fountain Plaza, Buffalo, New York, in 1988 or 1989. Both Judge Skretny and Mr. Bybel were employed at the Cox Barrell firm simultaneously for several months and worked closely together on some cases. This information was placed on the record in proceedings before Judge Skretny on February 25, 1994, and acknowledged by Judge Skretny to be correct. . . . Judge Skretny's private law practice files are stored at Mr. Bybels' residence." [JA 705]

The point here is not that the above facts by themselves prove improper bias, but that such a close relationship, combined with evidence of a secret ex parte communication in which Judge Skretny assured Mr. Bybel that he was out of the case, and evidence of clear favoritism in favor of Mr. Bybel in the contempt case, is sufficient to merit recusal. Further, while Judge Skretny, and Intervenor on appeal, argue that the allegation about the ex parte communication lacked sufficient detail, it was nevertheless credible since the motion contained details about Mr. Bybel and Judge Skretny that could only have come from Mr. Bybel and which were either confirmed or not denied by Judge Skretny. Also, any such deficiencies were cured by Respondent's renewed motion to recuse. See, JA 788-817.

V. INTERVENOR OFFERS NO REBUTTAL TO RESPONDENT'S CLAIM OF ETHICAL PRIVILEGE.

Intervenor asserts that respondent could have "within the bounds of ethics" revealed the fact that his client had not consulted him prior to distributing the memo. [p. 20] No citations to legal authorities are offered in support of this assertion. The sole support offered is the example of attorney Frank Bybel, who apparently did not invoke privilege at his federal court trial. [p. 20, n. 7] Thus, in opposition to detailed argument made by respondent that his actions were mandated by the Code of Professional Responsibility, intervenor cites as her authority on legal ethics a lawyer who failed to appear in court in response to two letters of a Magistrate, failed to file any papers in the matter, and had two improper ex parte communications with Judge Skretny.

VI. RESPONDENT REASONABLY ASSERTED ATTORNEY-CLIENT PRIVILEGE AT TRIAL TO PROTECT THE SCOPE OF HIS COMMUNICATIONS WITH HIS CLIENT.

Though the question of whether an attorney can invoke privilege to refuse to state whether he spoke to his client about a given subject, is of secondary importance to this appeal, at best [See, Res. Brief at 43], intervenor chose to make the issue the centerpiece of her brief, mentioning it in the first sentence and first sentence of the conclusion and elsewhere. Intervenor argues that respondent's assertion of privilege was frivolous because "there was no attorney-client communication to protect." [p. 8] Even if that were true, however (which it is not), respondent's claim of privilege was reasonable and supported by consultation with various evidence treatises: "It is not clear, however, whether the privilege also protects what the client did not communicate." Paul Rice, Attorney-Client Privilege in the United States (1993), p. 287.

Elementary principles of legal ethics dictate that, in an unsettled area of law, one gives the benefit of the doubt to one's client, not to the opponent of one's client! Nor should this Court, in a case in which the issue is not primary, adopt the extreme rule urged on it by the intervenor: that silence can never be privileged. That silence can be meaningful is proven by intervenor's own brief. The silence in that brief about how Judges Heckman and Skretny killed a deposition by pretending that respondent had not filed papers, conveys far more than the brief itself does.

If an attorney can be asked an endless series of questions of the form "did your client speak to you about A?--B?--C?--D?", etc., the client's opponent, armed with a sufficient number of yes and no answers, can go a long way toward reconstructing conversations between attorneys and clients. There is no end of mischief down that road. For example, in a criminal case:

Q. "Did your attorney discuss with you the case of People v. Goetz, the New York case defining what you have to say to get off on self-defense?

DEFENSE COUNSEL: Objection, privilege.

THE COURT: Overruled.

A. Yes, he did.

Q. Ah ha!

Thus, it is reasonable for an attorney to invoke privilege to refuse to answer such questions so as not to "reveal the scope of a protected communication." Modern Evidence, supra. In fact, such was the case in the court below. Intervenor asserts that respondent "must have discussed the tenure file inspection with Mr. Blum." [p. 18] Also, respondent successfully invoked privilege in response to the question:

Q. Now, at the time you had that communication with Mr. Blum, did he tell you that his review of the tenure file would be conducted pursuant to a protective order? [Nov. 6, 1995, 109:14-17]

The communication at issue was a communication between respondent and his client prior to coming to court on June 29, 1993. Another communication between Respondent and his client, which took place in court on June 29, 1993, was held to be privileged on respondent's motion. Expressing some difficulty remembering which conversations with his client took place that day, respondent nevertheless thought it prudent to invoke privilege when asked about the "substance of that conversation." [116:23] The court upheld the claim. [117:15-24]

Given these two instances of successful claims of privilege related to the contempt proceeding against the plaintiff, it is incorrect for intervenor to state in her brief that "there was no attorney-client communication or confidence to protect." [p. 8] The truth is, intervenor does not have the slightest idea what respondent and plaintiff discussed on the two occasions ruled privileged by the court.

Finally, given that some information about respondent's communications with his client were made public at the hearing, it was reasonable for respondent to invoke privilege against various "did you discuss X with him" questions, to prevent his client's opponents from reconstructing the substance of attorney-client conversations. Modern Evidence, supra.

While respondent's assertion of privilege was correct and partially upheld by the court, even if it was not correct, the frivolity of the motion against respondent is not thereby cured. As pointed out in respondent's brief--and not responded to by intervenor--if respondent had not discussed the memo at issue with his client, there would be no basis for sanctions. If he had, such communications would be privileged. Both roads lead to sanctions based on the absence of a motion well-grounded in fact.

VII. INTERVENOR, DEFENDANTS, AND THE COURT BELOW BEAR FULL RESPONSIBILITY FOR THE EXISTENCE OF AND THE LENGTH OF THE PROCEEDINGS BELOW.

Intervenor repeatedly blames respondent for the two and a half years respondent endured the proceeding below. This is in spite of the fact that intervenor brought the motion against respondent, and respondent repeatedly moved for dismissal of the motion. All the time the case took was the fault of the opposing parties and the court. Respondent moved to dismiss the case on July 27, 1993 before Judge Heckman and again on September 13, 1993, before Judge Skretny. Although the motion should have been dismissed at that point, Judge Skretny instructed the parties to file more papers and respondent's motion to dismiss was renewed on November 30, 1993. Judge Skretny, however, did not rule on the motion until January 14, 1994, denying the motion to dismiss.

The next several months were spent primarily on the case against the plaintiff since Judge Skretny decided to delay proceedings against respondent until it was determined whether plaintiff had violated the protective order. Thus, from January 1994 until July 1995, when Judge Skretny found plaintiff in contempt of court, the proceedings primarily concerned the plaintiff. Most of this period was spent by Judge Skretny agonizing over the supposedly "no brainer" issues of plaintiff's liability and respondent's recusal motion. Judge Skretny then scheduled respondent's trial for November 6, 1995. The trial itself took only about two hours. It is therefore clear that respondent, who sought a quick determination of the proceedings, is not responsible for any of the two and a half years the senseless proceeding consumed. Full responsibility lies with the intervenor, the defendants, and Judges Heckman and Skretny.

Finally, intervenor's shifting of blame for these proceedings onto respondent is evidence of her complete disregard for the policy behind Rule 11: to avoid the unfairness of imposing on the "defendant the inordinate inconvenience and expense attendant to obtaining dismissal of the action. . ." Agristor Leasing v. McIntyre, 150 F.R.D. 150 (S. D. Indiana 1993). Because both intervenor and Judge Skretny blamed respondent for his failure to obtain dismissal of intervenor's frivolous motion, intervenor should be sanctioned and Judge Skretny recused. The defendants should be sanctioned as well in a manner appropriate for the cheerleaders of this folly.

CONCLUSION

Respondent respectfully requests that his case be remanded to District Court with the following instructions:

1. that Judge Skretny recuse himself;

2. that the injunction against filing papers be lifted;

3. that respondent be allowed to file an omnibus motion for sanctions to supplement his existing motion, and that the court direct that a response to said motions be served and that a hearing thereon be held;

4. that the intervenor be ordered to show cause why she should not be sanctioned for moving to cancel the deposition of Frank Bybel; and

5. that costs shall be granted to the respondent in the proceeding below in an amount to be determined by the District Court.

Respectfully submitted,

________________________________

James Ostrowski, Esq.,

Respondent-Appellant, pro se

William J. Ostrowski, Esq., of counsel on the brief November 26, 1996

1 This transcript will be filed imminently and will thus become part of the record on appeal. FRAP 10.

2 A docket entry dated May 10, 1996, states: "Case closed". JA XLIV.

3 Judge Skretny is the only trial court judge respondent knows of who has such a policy.

4 Which, issued by a single judge on a motion as part of a mandamus proceeding, is not the law of the case. 26