A Baltimore city judge called Sen. Robert A. “Bobby” Zirkin “unethical” during a hearing last month for attempting to use his legislative privilege to delay a medical malpractice case by entering his appearance on behalf of the defendants less than two weeks before trial and seeking a postponement.
But Zirkin said Wednesday the judge’s remarks as well as statements made by plaintiff’s counsel are “unbelievably insulting and false.”
Zirkin, D-Baltimore County and chair of the Senate Judicial Proceedings Committee, entered his appearance Jan. 24 in a lawsuit against the University of Maryland Medical System. The lawsuit was initially filed in September 2015, and the trial, which had already been postponed twice, was set to begin Feb. 6.
Baltimore City Circuit Judge Althea M. Handy denied the most-recent postponement request during a Jan. 25 hearing, a recording of which was reviewed by The Daily Record. Zirkin was not present at the hearing because he was in Annapolis.
“You don’t enter your appearance in a case knowing that the trial date is coming up… that’s, to me, it’s rather unethical if you’re not prepared to go to trial to enter your appearance at this late date,” Handy said at the hearing.
William H. “Billy” Murphy Jr., who also was retained by UMMS on Jan. 24, said those were “strong words.”
“It is a strong word,” Handy replied, “you’re right, but you certainly know you should not enter your appearance unless you’re prepared to go to trial.”
Four attorneys from Murphy, Falcon & Murphy in Baltimore entered their appearances in the case the same day as Zirkin but did not request postponements. The defendants had been represented by Neal M. Brown, of Waranch & Brown LLC in Lutherville, since November 2015.
Zirkin said Wednesday he was asked to be a part of the case with Murphy’s firm, which has happened in the past, and spent time doing trial preparation with the clients after he was retained. Zirkin’s firm, Pikesville-based Zirkin and Schmerling Law, primarily handles motor vehicle accidents, moving violations and family law.
“They asked me to be a part of the case with them,” he said. “I think the defense wanted a new perspective from the plaintiff’s bar.”
Hassan Murphy said Wednesday his firm was retained after the case failed to resolve in mediation and added Zirkin because he “is an energetic and talented trial lawyer.” Zirkin was deeply involved in preparing the defense during his time on the case, Murphy said.
Zirkin said he was “cognizant” of the fact that his entry of appearance would necessitate a postponement but did not anticipate the reaction from the plaintiff’s attorneys and Handy.
“What the plaintiff’s counsel said and wrote and was apparently adopted by a judge I have never met before was grossly inaccurate and false and quite frankly very insulting,” he said. “I’ve worked quite hard to build a reputation and a practice as a trial attorney.”
The case went to trial as scheduled Feb. 6 but was settled confidentially, according to UMMS spokeswoman Karen Lancaster. Online court records state the case was settled Tuesday.
Delay tactics alleged
Jon S. Stefanuca, a lawyer for plaintiff Robin Griffin, told Handy at the Jan. 25 hearing that he “vehemently” objected to the postponement request. The plaintiffs had their experts retained and flights and hotels booked and were prepared for trial.
“Mr. Zirkin coming into the case is nothing more than the defense’s continued attempt to get this case postponed,” he said. “I think this is nothing more than a ruse to avoid trial to serve whatever agenda they have.”
Stefanuca, of Gilman & Bedigian LLC in Timonium, said UMMS is a sophisticated corporate client and had months to explore options for trial.
“It’s not about Mr. Zirkin, it’s about University of Maryland knowing better,” he said.
Lancaster, in a statement Wednesday, said the allegations “are completely without merit.”
“We were excited to work alongside Mr. Zirkin and for him to bring his considerable skills to bear in defending our institution and its caregivers,” she said.
Stefanuca did not return a call seeking comment Wednesday.
Brown argued during the hearing that the Maryland Rules require the court to postpone a case when a member of the legislature enters his or her appearance in a proceeding that conflicts with the General Assembly session, and Zirkin said in a filing with the court that the judge had no discretion to deny his request.
But in her Jan. 31 order denying the postponement request, Handy cited the Maryland Lawyer’s Rules of Professional Conduct, which permit a continuance for an attorney entering his appearance if it is “made in good faith and not for purposes of delay.”
Handy wrote she could “find no other reason for Mr. Zirkin entering his appearance at the eleventh hour other than delay.”
An administrative order for continuances based on legislative privilege says they “shall be granted” but also says the legislator should “consider the inconvenience to the public, bar and judicial system” before accepting the employment, according to Handy.
Handy also noted that after the order was prepared, her chambers received a faxed line to withdraw Zirkin’s appearance.
Zirkin said Wednesday he had filed a letter of reconsideration the plaintiffs’ lawyers responded to and at that point he decided to leave the case.
“I made the determination that this was becoming much more distracting than it deserved,” he said.
The case is Robin Griffin, et al. vs. University Of Md Medical Systems Corporation, 24C15004716.