AP Photo Newark watershed fight emerges over disclosures from Booker's former law firm

A new legal battle over the disclosure of documents from U.S. Sen. Cory Booker's former law firm, Trenk DiPasquale, is playing out in the ongoing bankruptcy case of the Newark Watershed Conservation and Development Corp.

In competing motions, new lawyers for the watershed are fighting with old lawyers for the watershed over a trove of documents that could illuminate the firm's involvement in and alleged contribution to one of the biggest kickback scandals in Newark history.


While Booker was mayor and chairman of the board of the NWCDC, the agency's officers skimmed roughly $2 million in illegal kickbacks while running virtually all of Newark's water infrastructure. The agency was disbanded and put into the hands of a team of legal experts who filed for bankruptcy.

Booker, who was a partner at Trenk before he was mayor, never attended a meeting of the board and he has been taken off the lawsuit.

But Booker's long-time friend and adviser, Elnardo Webster, served as general counsel to the watershed agency while he worked at Trenk and while Booker was mayor. The trustees of the agency now say Webster is liable for damages, having failed, they say, to provide the most basic legal services to the agency during his time as counsel.

Last month, lawyers representing Webster and his associates told a judge they would hand over documents pertinent to the case by Dec. 23. On Dec. 22 they filed a motion seeking to dismiss the claim against Webster based on two arguments.

The first point has to do with a legal document called an Affidavit of Merit. The law requires that the person who submits the affidavit, which asserts that Webster failed in his duties, be something of an expert in his or her field. Bruce McEvoy, a lawyer representing Webster, argued the person who submitted the affidavit for NWCDC — Stephen Roth — was no such expert.

"The nature of the underlying action primarily relates to government affairs, regulatory matters, and municipal proceedings," McEvoy wrote in the 10-page brief. "Mr. Roth’s affidavit fails to identify any experience in these areas, let alone the requisite five years of substantial experience within them."

In a response brief, NWCDC's lawyers argue that Roth is qualified, adding that the complaints against Webster and others are so basic that specific expertise isn't required to call them out.

"The Complaint and the Roth [affidavit] focus on breaches of the lawyer’s duty of loyalty (something common to every practitioner) and negligence in advising the NWCDC Board as to the restraints imposed by their charter and by-laws and the obligations and limits imposed by the contracts by which the City provided funding to the NWCDC," lawyers for the agency wrote. "These are duties common to all lawyers who represent a client engaged in any way in business of any kind."

The second argument revolves around rules of professional conduct. NWCDC's current trustees say Webster and others violated the rules and therefore are liable in the bankruptcy claim. Lawyers for Webster argue that's not good enough.

"The affiant relies solely on duties based on the Rules of Professional Conduct to assert that the alleged standard of care was not provided," McEvoy writes. "Such assertions are misplaced with respect to asserting claims of civil liability."

Lawyers for the NWCDC said not only were the rules applicable to Webster, but they go on to accuse McEvoy of violating rules of professional conduct himself by stalling for 53 days and then throwing up the motion to dismiss as a last-ditch play, after he had already agreed to hand over documents.

In the brief, NWCDC lawyer James Scarpone levels an attack directly at McEvoy, arguing he should be sanctioned "for his Vexatious and Unreasonable Behavior" in not following the court's schedule to hand over the documents and not responding to emails or other inquiries.

"Mr. McEvoy’s lack of candor to this Court and to NWCDC counsel transcends what could be considered appropriate 'legal maneuvering' and is therefore worthy of sanction," Scarpone argued.

The attorneys will meet in federal court in Newark on Jan. 18 for oral arguments.

A copy of the motion to dismiss can be read here: http://politi.co/2jl5Kn0

The NWCDC's response can be read here: http://politi.co/2jl0sYv

