I wanted to bring you up to speed on the Renfroe v. Rigsby case, the one where E.A. Renfroe & Co. is suing the Rigsby sisters for breach of their confidentiality agreements in giving State Farm claims documents to Dickie Scruggs, who apparently passed them around to the Scruggs Katrina Group and other policyholder lawyers like a bottle of cheap wine at a frat party. This case, you may remember, is the one out of which the prosecution of Scruggs for alleged criminal contempt of court arose.
On November 28, attorneys for the Rigsbies filed a motion to disqualify Judge William Acker from the case, saying his impartiality was compromised in light of his appointment of special prosecutors to go after Scruggs. Here is a copy of the supporting legal memorandum. A very interesting point in the brief: although Scruggs is not the sisters’ attorney for purposes of defending this case, he has agreed to indemnify them for attorney fees and damages they may be assessed because of the case.
Here is Renfroe’s brief in opposition to the motion to disqualify. And here is the item that interests me most, an order from Acker, following a hearing on the motion to disqualify last week, that says the court neglected to ask when the Scruggs indemnity agreement was made, and giving the Rigsbies until December 21 to respond. I could make various guesses based on what facts I know, as I’m sure you could too, but I’m just going to wait and see what the answer is.
I don’t know what the proper analysis is for the Rigsby motion. I once had a case in federal court where the judge, a few weeks before trial, on my motion fined one of the defendants $25,000 for violating a court order, then much to my chagrin recused herself. Turned out all right. The trial was held as scheduled, the judge we got was equally good, and we won the case in a bench trial. Judge Acker’s action in the Renfroe case, however, was not against a party or even the party’s counsel, but an attorney who represents the Rigsby sisters in another capacity. The Rigsby argument is that there is such an identity of interests, and that actions in this civil case may reflect on the criminal prosecution, that Acker either cannot be impartial or there is the substantial appearance that he cannot be impartial. What do you think the right answer is?
UPDATE: As Justus pointed out in the comments, far more cogently than I did in this post, the point of Judge Acker’s query is that the supposed indemnity agreement must be in writing to be enforceable under the Statute of Frauds. So he wants to see written evidence of the Rigsby agreement, leading one to suspect that he suspects there is no written contract.