Boies Backs Ex-Bankruptcy Judge ‘Immunity’ in Relationship Suit

Litigation surrounding a former Texas bankruptcy judge’s once-secret relationship with a local attorney should be dismissed, despite “appearance issues,” top litigator David Boies said.

Boies on Thursday filed papers asking a federal court to toss the case against his client, former judge David R. Jones, which was brought by the onetime CEO of a petroleum barge company that filed for bankruptcy before Jones four years ago.

The motion to dismiss is the latest development in the scandal related to Jones and his longstanding romantic relationship with Elizabeth Freeman. She was Jones’ former clerk and a onetime bankruptcy partner at Jackson Walker, a law firm that regularly represented clients before him in court.

Boies, 83, said in an interview with Bloomberg Law that judges are entitled to “absolute immunity” for their decisions.

“It is designed to ensure judges know when they make a decision that that decision is not going to subject them to civil liability from an unhappy litigant,” Boies said. “Or even the burden of having to defend themselves against an unhappy litigant.”

Allegations of malice or corruption don’t render a judge’s actions an exception to judicial immunity, and Jones’ failure to disclose the relationship doesn’t make his actions in the Bouchard Transportation Co. Inc. bankruptcy non-judicial, Thursday’s motion said.

“Judges are entitled immunity even when their violation of a recusal obligation was allegedly intentional or malicious,” the motion said.

The revelations involving Jones, once the busiest judge overseeing large corporate Chapter 11s in the country, have cast a shadow on the Houston bankruptcy court Jones built to prominence, and have prompted a Justice Department unit to try to recover millions of dollars from Jackson Walker, Freeman’s former firm.

Boies, chair and founding partner of Boies Schiller Flexner, entered an appearance last month on behalf of Jones.

The case is being heard by Chief Judge Alia Moses of the US District Court for the Western District of Texas.

Boies said he is representing Jones on a pro bono basis. In other cases, Boies has charged more than $2,000 an hour, according to court filings.

‘Unhappy Litigants’

The former CEO of the petroleum barge company, Morton S. Bouchard III, accused Jones of breaching his duties and deceiving the public by failing to disclose his relationship with Freeman while her firm worked on cases that he oversaw. The suit includes allegations of fraud and violating the Racketeer Influenced and Corrupt Organizations Act.

Jones, who announced his resignation in October, presided over the Bouchard Transportation Chapter 11 case and removed Bouchard as CEO.

Boies said he hadn’t considered whether Jones should have recused himself in cases involving Freeman. There was no evidence that any decisions Jones made in court were improper or influenced by anything other than the merits of the case, he said.

“The judge resigned,” Boies said. “The judge recognized that there were, at a minimum, appearance issues. But that is not the issue that is being dealt with in this litigation.”

The government’s bankruptcy watchdog is challenging fees Jones approved for Jackson Walker in several Chapter 11 cases.

Bouchard Transportation, which filed for Chapter 11 in September 2020, was represented by Kirkland & Ellis and Jackson Walker. Kirkland and Jackson Walker have both moved to dismiss Bouchard’s fraud case, and have called for sanctions against Bouchard and his counsel at Bandas Law Firm. Freeman has also sought to have the case tossed.

Bouchard in February accused them of conspiring to keep the relationship secret.

In a hearing in a similar matter last month, Moses said it was “mandatory” for Jones to disqualify himself on any case Freeman was involved in. At that same hearing, in which Jones sat in the courtroom, Moses was critical of Jones’ actions, saying: “It gives me a little bit of pause to think that we can misbehave, walk into court, issue an order, and then be completely absolved of our misconduct.”

Responding to that comment, Boies told Bloomberg Law the case is not about Jones being “completely absolved” for misconduct. Parties can appeal their rulings; judges can be impeached; and, in rare cases, judges can be criminally prosecuted for corruption, Boies said. But judges should not face civil litigation for their decisions, he said.

“It’s a question of what is the appropriate remedy,” Boies said. “Are we going to open this up and make judges open targets for civil litigation by unhappy litigants?”

The case is Bouchard v. Jones, S.D. Tex., motion 7/11/24.