The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
MEMORANDUM-DECISION AND ORDER
There are two unresolved questions remaining in this action: (1) should the judge recuse himself; and (2) should the court sanction plaintiffs' counsel, Elmer Keach, III, Esq. The question of sanctions arises from both the court's sua sponte motion and the motion of defense counsel, William Greagan, Esq. The recusal question arises from Keach's response to the court's motion. For the reasons that follow, the court denies the recusal motion and declines to sanction Keach.
The question of sanctions arises in the context of a class action litigation consumed by attorney acrimony throughout its four year history. During settlement negotiations in 2006, the attorneys collectively filed eight letters that were purportedly related to their negotiations.*fn1 (See Dkt. Nos. 86, 87, and 91 through 96.) While the letters reflected an apparent intention to keep them free from public disclosure, they were not filed ex parte as would have been authorized if the parties were seeking judicial assistance with their settlement efforts. Furthermore, the parties had no separate confidentiality agreement precluding disclosure of the letters. Greagan sent five letters and requested that they be filed under seal. Keach sent three letters together with sealing requests, but also requested that the court refrain from filing one of the three letters.*fn2
Thereafter, the parties stated they had tentatively settled the suit, and the court scheduled a date for the preliminary approval of the class action settlement. After the court entered a preliminary approval order, the attorneys continued their acrimonious relationship which resulted in further judicial intervention and an amended preliminary order. After still further judicial intervention, the final approval hearing was held on September 5, 2007. Thereafter, the court issued a November 5, 2007, decision and order approving the settlement, but class counsels' attorneys fees were reduced. Judgment was entered on November 21, 2007. On December 4, 2007, class counsel appealed the court's fee award.
Thereafter, Keach wrote the court on January 4, 2008, and requested the earlier settlement letters be unsealed. (See Dkt. No. 157.) As pertinent, his letter stated:
Class Counsel plans to include these documents in their Joint Appendix regarding the pending appeal on attorneys' fees.
Class Counsel does not believe there is any present basis to have these items filed with the Court under seal, nor should they have to be filed under seal with the Second Circuit, given that the settlement was finally approved by the Court and a judgment to that effect has been entered. (See id.) On January 10, 2008, the court denied his application, stating the Second Circuit had full access to the district court's sealed documents. (Dkt. No. 158.) On the same day, a local newspaper published an article quoting the court's order. (See C.T. at 26-27.)
Thereafter, Greagan contacted the clerk's office requesting guidance on disciplinary procedures since he apparently intended to seek Keach's disbarrment. The court's courtroom deputy referred Greagan to the District's Local Rules. Despite those rules, Greagan filed a letter with the court seeking disciplinary action against Keach, and mailed a copy of the letter to Keach. Given the sensitivity of Greagan's allegations, the longstanding animosity between Greagan and Keach, and the court's regard for fundamental fairness, the court elected not to file Greagan's letter. Instead, it scheduled a conference to discuss the matter.
In Greagan's letter, he mentioned his conversation concerning disciplinary procedures. When Keach received his copy, he called chambers on January 23, 2008, and spoke to the court's courtroom deputy. As reflected in a "chambers only" docket entry on that date, Keach accused the court of engaging in ex parte communications with Greagan, and demanded an explanation. After his telephone conversation, Keach apparently thought better of his accusation, and wrote the court a letter ostensibly addressing the unrelated Greagan disbarrment application. In a footnote, he stated: "I want to make clear that by making this request, I am not implying that either the Court or its staff engaged in any impermissible ex parte communications with Mr. Greagan about the substance of his application to have me disbarred." (See 1/23/08 Keach Ltr. at 2, fn. 1, Dkt. No. 161; see also C.T. at 49-50.)
On February 27, the court held the scheduled conference. The court denied Greagan's unfiled disbarrment motion, again informing him that disciplinary matters must be referred to the Chief Judge. After reciting the history of the settlement letters and the district's varying filing procedures post-electronic filing, the court addressed two specific issues: first, Keach's letter to the court seeking to unseal because of the pending appeal; and secondly, Keach's allegations regarding improper judicial ex parte communications.
As to the first issue and referencing the court's order denying his application to unseal, the following exchange occurred:
The Court: So at the same time you requested that I unseal documents for purposes of your appeal before the Second Circuit, did you disclose my order denying that to the Times Union as it related to their newspaper article that day?
Mr. Keach: Relative to Your Honor's order which was placed on the ECF system, yes.
The Court: Did you lie to me in your letter to me telling me that you wanted the documents unsealed for purposes of your appellate proceedings when, in truth, you wanted them unsealed so ...