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How a lawyer blew the whistle on a judge

'It was the most distasteful thing I ever had to do in my life'

Sunday, March 02, 2003

By Marylynne Pitz, Post-Gazette Staff Writer

Hours after silence fell in the vault called the federal courthouse, Joel Persky walked through the building's cavernous halls.

Asbestos lawyer Joel Persky - "My career, my good name, my law firm, my family - the stakes were huge." (Darrell Sapp, Post-Gazette)

On that August night last summer, the successful, 52-year-old asbestos lawyer met with three federal prosecutors in the empty building. Years of trials had toughened Persky's nerves, but nothing had prepared him for the ethical dilemma he faced.

The day before, Allegheny County Common Pleas Judge Joseph A. Jaffe had handed him a list of personal debts and asked for financial help.

Persky, whose firm of 30 lawyers had 1,300 asbestos cases pending before Jaffe, was worried about the consequences of setting the judge up. And he was afraid the judge was setting him up.

"The whole thing was very scary because at any point ... he could have turned it on me and I'd really be victimized. My career, my good name, my law firm, my family -- the stakes were huge," Persky said.

Plus, the lawyer said, "I yell at my kids for tattling on each other."

The two men were casual acquaintances. In the 1960s, both attended the University of Michigan in Ann Arbor. Jaffe urged Persky to donate money to the judge's favorite charity, Big Brothers and Big Sisters of Greater Pittsburgh. Persky wrote a check to the nonprofit for $5,000.

But the judge's request for help with personal debts, made on an Uptown sidewalk outside Persky's office, "was so blatant that I thought he might be wired," Persky said.

"I was living on adrenaline," said Persky, whose routine of negotiating legal settlements, punctuated by rounds of golf and yoga instruction, became one of secret meetings with federal agents, taped cell phone conversations and video surveillance.

Persky, who has avoided publicity, recounted his experience as a whistle-blower in an interview last week. Jaffe, 52, pleaded guilty last month to extorting money from Persky and will be sentenced May 16. Jaffe has qualified for a temporary, $60,000 a year disability from the State Employees' Retirement System because he is depressed. The system's board of trustees will vote on whether to award the money in March.

In the city's Uptown section, Persky's office is neat and organized. Like soldiers in formation, thick legal binders stand shoulder to shoulder on a table. Colorful abstract art painted by his wife adorns the walls. Family photos are lined up precisely.

Persky, who describes himself as "a poor Stanton Heights boy," likes order.

The upending of that order started with a two-minute encounter last year on Forbes Avenue in Squirrel Hill. That's where Persky ran into Jaffe, who had recently been assigned to handle the 2,200 asbestos cases in Allegheny County Common Pleas Court.

Jaffe asked Persky what his firm's associates thought of the way he was handling the asbestos docket. Persky said he had heard Jaffe was doing a fine job.

The judge told Persky he could always call and suggest how to do a better job of handling asbestos cases. Persky told Jaffe to let him know if there was anything he could do to help him but regretted making the remark even as he said it.

His firm, Persky said, has a rule: Never say anything you don't want to hear repeated or misconstrued. When Jaffe called later and asked again if there was anything he could do to help with the cases, "My antenna was up," Persky said. Nothing came of that conversation, but July 29, Jaffe called again.

"I was real shaky when he called me on a Monday and said he had an emergency and needed to talk to me ASAP. I knew something bad was happening," Persky said.

Persky was unavailable until Wednesday, he said. On the morning of July 31, Jaffe phoned, asked Persky the location of his office and drove there. The men talked briefly for five minutes on the sidewalk outside.

Jaffe reminded Persky about his offer of help, made earlier during their chance encounter in Squirrel Hill. The judge showed Persky a list of his personal debts that totaled nearly $13,000. Then he changed the subject to golf and asked Persky if his game was improving.

"Would it be ethical if I took you golfing?" Persky asked.

Jaffe replied, "After what I've just asked you for, you ask about ethics?"

Persky stalled, saying he needed time to think about it and took the list with him. It was lunchtime.

Immediately, Persky showed the list of debts to one of the firm's partners, Ted Goldberg. The two men lunched with a co-counsel from West Virginia.

Then, Goldberg and Persky telephoned John Burkoff, a law professor and ethics expert at the University of Pittsburgh School of Law.

Goldberg and Persky met with Burkoff in his Oakland office.

"I was shocked. It was heart stopping. I've never encountered something like this. We spent a good half-hour trying to see if there were other interpretations of what had happened. We took turns going through various scenarios," Burkoff said.

"We wanted to make sure because the consequences of going to law enforcement and turning in a judge could be a real problem for Joel and his firm. What if you're wrong? What if he really meant something else?" Burkoff said.

Later that evening, the three men continued the conversation in the living room of Persky's Squirrel Hill home. Joining in that discussion was Stanton D. Levenson, a seasoned criminal defense lawyer.

"We wanted to try to find a solution that would protect Joel and at the same time not hurt Jaffe. We spent a lot of time trying to figure out a way to do that," Levenson said.

For more than an hour, the four men analyzed Persky's options.

"He was concerned about his ethical obligation to blow the whistle on a guy he had been casually friendly with. He was concerned about his clients and what effect this would have on them. He was upset that Jaffe had put him in this position," Levenson said.

If Persky did not act, he could have faced criminal charges, too.

"Joel was handed a piece of evidence by the judge. Not having turned over that evidence to authorities would have constituted the crime of obstruction of justice," Levenson said.

If Persky told the judge "no" and went on as if nothing had happened, he was risking Jaffe's wrath.

"It's not real smart to piss off the guy who is sitting on 1,300 of your cases. He was opening himself up to malpractice," Levenson said, adding that if clients later learned about the encounter, they could have sued Persky.

If Persky had rebuffed Jaffe, then asked the judge not to hear any of his cases based on the request for money, Levenson said, "Then, he's in a pissing match with the judge. Jaffe could say, 'No, he came to my chambers and offered me a bribe.' Who needs that aggravation? There was only one way to handle this and that's the way we did it."

Burkoff and Levenson advised Persky that if he told the feds, they would want him to wear a wire.

"If you make a charge like this, it would be denied," Burkoff said. "The only way you could prove it was to actually have it on wire and have agents listening. Joel kept doing nervous laughing. It was so amazing that you almost had to laugh to relieve the tension. We were asking him to wear a wire, which is what you see on the 'The Sopranos,' but you don't do," Burkoff recalled.

Persky recognized that he needed to do it.

"The only way that I could be totally protected was to go to the U.S. attorney's office," Persky said. "Every other option gave Jaffe an opportunity not only to deny it, but to turn it on me."

After the three lawyers left, Persky telephoned his wife, Michelle Browne, who was staying at the couple's home in Sarasota, Fla.

"Oh, my God," was her reaction. The couple even discussed the possibility of Persky moving his law practice to Florida.

The next day, Levenson called Robert Cessar, first assistant to U.S. Attorney Mary Beth Buchanan. A 7 o'clock meeting was arranged in the U.S. District Courthouse.

"As of the time I called Cessar, I did not know whether or not Joel was the target of a sting operation. That was the first thing I had to find out. Was Jaffe cooperating with them in some sort of investigation. He said 'no,"' Levenson recalled.

That night, Burkoff and Levenson accompanied Persky to his meeting with federal prosecutors and FBI agents. Persky agreed to wear a wire in any meetings with Jaffe and tape any cell phone conversations with him.

Afterward, Levenson said: "He felt good that he had exercised his ethical obligation and the matter was now going to be investigated by somebody else. He was not at all relaxed. He's a quiet, low-key guy and all of a sudden, this was thrust on him. He was really angry."

FBI agents moved quickly to set up surveillance equipment at Persky's home.

"It was a very tense period of time. I was very interested in having the feds wrap this up as quickly as possible. I was afraid that word would get out on the street. The longer it went on, the worse it was for Joel," Levenson said.

"Truthfully, we were all hoping that, when the magic moment came, that Jaffe would look at Joel and say, 'Forget it. This is stupid,' and walk out of the house."

In the first meeting at Persky's home, Jaffe said he could pay the lawyer back because he got referral fees from lawyers.

As the two men talked in the living room, FBI agents listened in the basement. A camera, mounted on a display case that holds Persky's collection of Southwestern pottery, videotaped the meeting.

"The camera was in some stupid clock that didn't work," Persky recalled.

On the morning of Aug. 7, Jaffe accepted the money that Persky handed to him in an envelope.

"I walked into my breakfast room and put my head down on the table. It was the most distasteful thing I ever had to do in my life. You never really want to do something to a human being that has the consequences of what I had to do to Joe," Persky said.

News of the transaction broke a week later. While Persky's friends praised him for doing the right thing, not everyone in the legal community was happy and wondered why the lawyer did what he did.

"After this first made the papers, there were a lot of lawyers and other people who were angry at him. That was upsetting. But I think he never anticipated, nor did we, how many people would treat him as a hero.

"Public opinion turned so quickly in his favor. But we couldn't be sure that's what would happen," Burkoff said.

When news broke that Jaffe solicited Edwin H. Beachler III to help him with the same list of debts, even the judge's defenders quieted down.

Persky felt that he had no choice but to do what he did.

"He really did not want to hurt Judge Jaffe, but he did not want to be hurt," Burkoff said.

At Westmoreland Country Club and at golf outings with lawyers, Persky experienced some glares.

"I was sensitive to people questioning what I had done. The vast majority of lawyers I know said, 'You did a brave thing.' I think I handled it just about as well as I could have handled it."

Marylynne Pitz can be reached at mpitz@post-gazette.com or 412-263-1648.

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