The most controversial of 15 new candidates for Superior Court, Shelley Marcus, of North Branford, was approved for a judgeship last week, despite bipartisan calls for an investigation into cases she handled as a lawyer.
The House, which confirmed all the other judicial candidates overwhelmingly, approved Marcus by an unusually divided 79 to 54 vote, with 18 members absent and not voting. She was approved by the Senate 31 to 4.
Marcus, 61, works in the North Branford law firm headed by her father, Edward Marcus, 84, a former state Democratic Party chairman and the firm's only partner. At the legislative Judiciary Committee, on March 1, she was questioned specifically about two clients who were recently convicted of criminal tax fraud charges in federal court, Donna Bello and Jill Platt, both of Guilford.
As a subpoenaed witness for the prosecution, Marcus testified in the criminal trial that, in 2009, she advised that a social club's "gifting tables" activities were neither clearly legal nor clearly illegal. Participants paid "gifts" of $5,000 to other members to get onto the bottom rung of the table. After others joined, and made their payments, those on the fourth level of the tables received a $40,000 payout. It was promoted as income-tax free, as a tax-exempt gift.
But federal prosecutors in February convinced a jury that the program was actually an illegal pyramid scheme and a tax fraud. During confirmation hearings on March 1, Marcus told the legislative Judiciary Committee that, while she didn't call the scheme "illegal," she did advise participants that it probably violated the state's contingent transactions act, just as an illegal private lottery would.
Lawmakers also quizzed her about a legal malpractice case currently pending against another lawyer in the Marcus Law firm.
The firm represented the Town of Branford during a period when developers were attempting to gain permits to build on arguably polluted property. Marcus testified that her involvement in representing Branford was minimal. At one point, she told the Judiciary Committee, she stood in for the first selectman during a court mediation session. She specifically said she was not functioning as an attorney or advocate.
When a lawyer in her firm was subsequently sued for malpractice by Branford for negligence in preparing the eminent domain case for trial, Marcus distanced herself by saying her only involvement was in a non-lawyer capacity. "I wasn't necessarily representing the interests of the town of Branford," she told the committee.
Rep. Rosa Rebimbas, R-Naugatuck, was perplexed by her answers. "It's questionable whether that's allowable or ethical," she said.
Also puzzled was Rep. Arthur O'Neill, R-Southbury. "I don't think a lawyer can function as a surrogate client — the lawyer and client roles are very distinct and different," he said in an interview.
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